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This  book  must  not 
e  taken  from  the 
sbrary  building. 


Digitized  by  the  Internet  Archive 

in  2010  with  funding  from 

Ensuring  Democracy  through  Digital  Access  (NC-LSTA) 


http://www.archive.org/details/digestofallrepor18744batt 


A   DIGEST 

OP   ALL   THE   REPORTED   CASES, 

BOTH  IN  LAW  AND  EQUITY, 

DETERMINED   IN   THE 

SUPREME  COURT 


OF 


NORTH  CAROLINA 


COMMENCING   WITH 


PHILLIPS'  LAW  REPORTS  AND  PHILLIPS'  LQUITY  REPORTS, 


AND   ENDING   WITH   THE 


70TH  NORTH  CAROLINA  REPORTS; 


TOGETHER  WITH 


A  TABLE  OF  THE  NAMES  OF  THE  CASES. 


prepared    bt 

■WILIjIAM   kc.  battle, 

Formerly  a  Judge  of  the  Supreme  Court. 


IN  ONE  VOLUME, 

To  be  known  as  the  4^  Volume  of  Battle's  Digest. 


RALEIGH: 

JOHN   NICHOLS   &   CO.,   BOOK   AND  JOB   PRINTERS. 

1874. 


e  M5.S- 


TITLES  OF  THE  REPORTS, 

DIGESTED   IN  THIS  VOLUME, 

With  the  Abbreviations  by  which  they  are  designated. 


TITLES   OF  THE   REPORTS. 

Phillips'  Law  Reports, 
Phillips'  Equity  Reports, 
63d  North  Carolina  Reports, 
64th  North  Carolina  Reports, 
65th  North  Carolina  Reports, 
66th  North  Carolina  Reports, 
67th  North  Carolina  Reports, 
68th  North  Carolina  Reports, 
69th  North  Carolina  Reports, 
70th  North  Carolina  Reports, 


WHEN  PUBLISHED. 

ABBREVIATIONS, 

1868, 

Phil.  L.  R. 

1868, 

Phil.  Eq.  R 

1869, 

63  N.  C.  R. 

1870, 

64  N.  C.  R. 

1871, 

65  N.  C.  R. 

1872, 

66  N.  C.  R. 

1872, 

67  N.  C.  R. 

1873, 

68  N.  C.  R. 

1873, 

69  N.  C.  R. 

1874, 

70  N.  C.  R. 

OP   THE 

SU  PR  EME    COURT, 

DURING  THE  TIME  COMPRISED  IN  THIS  VOLUME. 


JUDGES  OF  THE  SUPREME  COURT,  BEFORE  JULY,  1868 : 

RICHMOND  M.  PEARSON,    Chief-Justice, 
WILLIAM  H.  BATTLE,  EDWIN  G.  READE. 


JUDGES  OF  THE  SUPERIOR  COURTS,  BEFORE  JULY,  1868: 

DAVID  A.  BARNES,  ANDERSON  MITCHELL, 

EDWARD  J.  WARREN,  WILLIAM  M.  SHIPP, 

DANIEL  G.  FOWLE,  AUGUSTUS  S.  MERRIMON, 

ROBERT  B.  GILLIAM,  ALEXANDER  LITTLE, 

RALPH  P.  BUXTON,  CLINTON  A.  CLLLEY. 

Judge  Merrimon  resigned  iu  August,  1867,  and  was  succeeded  by 
Judge  Little.  Judge  Fowle  resigned  in  November,  1867,  and  was  suc- 
ceeded by  Judge  Cilley. 


JUDGES  OF  THE  CRIMINAL  COURTS : 

OLIVER  P.  MEARS,  Wilmington.        GEORGE  GREEN,  Newbern. 


JUSTICES  OF  THE  SUPREME  COURT,  SINCE  JULY  1ST,  1868 : 

RICHMOND  M.  PEARSON,    Chief -Justice, 
EDWIN  G.  READE,  THOMAS  SETTLE,* 

WILLIAM  B.  RODMAN,  NATHANIEL  BOYDEN,* 

ROBERT  P.  DICK,*  THOMAS  SETTLE,* 

WILLIAM  P.  BYNUM.* 
♦Justice  Settle  resigned  in  April,  1871,  and  in  May  of  the  same  year 
Justice  Boyden  was  appointed  to  succeed  him.  Justice  Dick  resigned 
in  July,  1872,  and  Justice  Settle  was  appointed  in  December  following 
to  succeed  him.  Justice  Boyden  died  in  November,  1873,  and  Justice 
Bynuni  was  appointed  in  the  same  month  to  succeed  him. 


JUDGES  OF  THE  SUPERIOR  COURTS,  SINCE  JULY  1,  1868  r 


FIRST   CLASS. 

♦CHARLES  C.  POOL,  1st  Dis. 
*CHAS.  R.  THOMAS,  3d  " 
DANIEL  L.  RUSSELL,  4th  " 
RALPH  P.  BUXTON,  5th  " 
ALBION  W.  TOURGEE,  7th  " 
GEORGE  W.  LOGAN,  9th  " 
♦WILLIAM  J.  CLARKE, 
♦JONATHAN  W.  ALBERTSON. 


6ECOND  CLASS. 

♦EDMUND  W.  JONES,    2d  Dis 

SAMUEL  W.  WATTS,    6th  * 

JOHN  M.  CLOUD,  8th  ' 

AND.  MITCHELL,         10th  ' 

JAMES  L.  HENRY,      11th  ' 

RILEY  H.  CANNON,    12th  « 
♦WILLIAM  A.  MOORE. 


♦Judge  Thomas  resigned  in  November,  1871,  and  Judge  Clarke  was 
appointed  to  succeed  him. 

Judge  Jones  resigned  in  March,  1871,  and  Judge  Moore  was  appoint, 
ed  to  succeed  him. 

Judge  Pool  resigned  in  April,   1872,   and  Judge  Albertson  was  ap- 
pointed to  succeed  him. 


JUDGE  OF  THE  CRIMINAL  COURT : 

WILMINGTON,  -  -  -  EDWARD  CANTWELL. 


INDEX -VOL.  IV. 


ABATEMENT.  pages 

1.  By  the  death  of  parties,    1 

2.  For  what  cause  to  be  pleaded, 2 

ACCORD  AND  SATISFACTION, 2 

ACCOUNT, 3 

ACTION  ON  THE  CASE. 

1.  When  the  action  is  sustainable, 3 

2.  For  deceit,    5 

ACT  OF  ASSEMBLY.     (See  Statutes,) 5 

AGENT  AND  PRINCIPAL. 

1.  Who  is  an  agent, 6 

2.  What  an  agent  may  or  may  not  do,    6 

3.  Of  the  liability  of  a  principal  for  the  acts  of  his  agent  and 

for  notice  to  him, 6 

4.  Of  the  liability  of  an  agent, 9- 

5.  Factor, 9 

AMENDMENT. 

1.  Of  the  records, 10 

2.  Of  the  pleadings  and  proceedings, 12 

3.  In  the  Supreme  Court, 14 

AMNESTY, 15 

APPEAL. 

1.  From  the  County  to  the  Superior  Court, 17 

2.  From  a  Justice  to  the  Superior  Court, 17 

3.  From  the  Clerk  or  Judge  of  Probate  to  the  Superior  Court,  18 

4.  From  the  Superior  to  the  Supreme  Court, IS 

APPRENTICES, 2& 

ARBITRATION  AND  AWARD. 

1.  When  to  be  sustained  or  set  aside,    27 

2.  Construction  of  awards  and  remedy  thereon, 28 

ARREST, 30 

ARSON 31 

ASSAULT  AND  BATTERY 31 

ASSIGNMENT  IN  EQUITY, 35 

ASSUMPSIT 35 

ATTACHMENT. 

1.  Original  and  under  C.  C.  P., 36 

2.  Garnishee  summoned, 39 

3.  Judicial  attachment, 40 

4.  In  equity,    40 

5.  Under  the  liens  of  laborers    and  others, 41 


VIII  INDEX.— VOL.  IV. 

PAGES 

ATTORNEY  AT  LAW,.. 41 

AUDITOR  OF  THE  STATE, 43 

BAIL, 43 

BAILMENT, 44 

BANKRUPTCY, 45 

BANKS  AND  BANK  NOTES, 48 

BASTARDY, 51 

BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES 53 

BONDS. 

1.  Of  their  execution, 57 

2.  Of  the  ratification  of  bonds, 57 

3.  Of  transfer  of  bonds, 57 

4.  Of  the  consideration  of  bonds, 59 

6.  Bond  given  for  the  hire  or  price  of  slaves, 60 

7.  Of  the  construction  of  bonds  and  their  conditions, 60 

BOUNDARY,    62 

BURGLARY, 63 

CARTWAY, 64 

CERTIORARI, 64 

CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY, 65 

CLAIMS  AGAINST  THE  STATE, 67 

CLERKS  AND  MASTER, 68 

CLERK  OF  THE  SUPERIOR  COURT, 69 

CODE  OF  CIVIL  PROCEDURE, 70 

COLOR  OF  TITLE, 71 

COMMON  CARRIERS, 72 

COMPROMISE, 75 

CONFEDERATE  MONEY, 75 

CONSTABLES, 81 

CONSTITUTION, 82 

CONTEMPT, 92 

CONTRACTS. 

1.  Construction  of  contracts  and  their  enforcement, 96 

2.  Sale  of  personal  chattels, 106 

3.  As  affected  by  the  statute  of  frauds,    108 

4.  Void  and  voidable  contracts, 109 

CORONER, n0 

CORPORATION, HI 

COSTS. 

1.  By  whom  to  be  paid, 112 

2.  Security  for  costs  and  suits  in  forma  pauperis, 114 

COUNTER-CLAIM, 1*5 

See  (Pleading— Counter-claim.)     (Set-off— Att.  Law,  6,  7,   8.) 

COUNTIES  AND  COUNTY   COMMISSIONERS, 115 

COUNTY  TREASURER, H7 


INDEX.— YOL.  IV.  IX 

PAGES 

COVENANT, 117 

CURTESY, 119 

See  (Husband  and  Wife — Husband's  interest  in  his  wife'3  pro- 
perty, 2,  3.) 

CUSTOM,    119 

DAMAGES, 119 

DEEDS. 

1.  Of  the  execution  and  date  of  a  deed, 12d 

2.  Construction  of  deeds, 121 

S.  Of  the  operation  of  a  deed,  and  when  they  may  be  avoided,  124 
4.  Deeds  in  trust, 126 

DESCENT, 126 

DEVISE. 

1.  Construction  or  to  what  passes  and  who  takes, 127 

2.  Power  to  sell  real  estate, 132 

3.  For  charitable  uses, 132 

DIVORCE  AND  ALIMONY,, 132 

DRAINING  WET  LANDS, 134 

EJECTMENT. 

1.  Of  the  title  necessary  to  support  the  action,    135 

2.  Actions  for  real  estate  under  the  Code  of  Civil  Procedure, . .   138 

3.  Defendant's  bond, 139 

4.  Writ  of  possession, 139 

5.  Trespass  for  mesne  profits, 140 

ELECTION 140 

EMANCIPATION, 140 

EMBLEMENTS, 143 

ENTRY, 143 

ESTOPPEL. 

1.  By  record, 143 

2.  In  pais  and  by  deed, 144 

EVIDENCE. 

1.  Its  competency  or  incompetency, 146 

2.  How  witnesses  are  to  be  examined, 150 

3.  Impeaching  the  credibility  of  witnesses, 151 

4.  Depositions, 152 

5.  Hearsay  and  common  reputation, 152 

6.  Experts  and  others  expressing  opinions 153 

7.  Proof  of  the  character  of  a  party, 154 

8.  Its  relevancy  or  irrelevancy, 154 

9.  Parol  evidence,  when  admissible, 156 

10.  Admissions,  declarations  and  acts  of  parties  and  privies, ....  158 

1 1 .  Public  documents, 160 

12.  Records  of  court  and  records  and  by-laws  of  corporations, . .  160 

13.  Proof  of  official  bonds, 160 


X  INDEX.— VOL.  IV. 

EVIDENCE.— (Continued  )  pages 

14.  Books  of  entries,  accounts,  receipts,  orders,  &c, 161 

15.  Confessions, 162 

16.  Dying  declarations, 163 

17.  In  criminal  proceedings  and  indictments, 166 

18.  In  cases  relating  to  wills  and  testaments, 173 

19.  When  evidence  is  or  is  not  required, 17± 

20.  On  whom  is  placed  the  burden  of  proof, 174 

21 .  When  the  jury  is  to  decide  upon  its  effect,. 174 

22.  Who  to  decide  upon  its  competency, 175 

23.  Grounds  of  objection  to  evidence  to  be  stated, 175 

EXCHANGE  OF  RAILWAY  BONDS, 175 

EXECUTION. 

1.  When  to  issue  and  its  teste, 176 

2.  When  to  be  issued  from  the  Supreme  and  be  made  returnable 

to  the  Superior  Court, 176 

3.  What  may  be  levied  on  and  sold  under  execution, 177 

4.  Levy,  sale  and  application  of  the  money  raised, 178 

5.  Lien  and  priority  of  executions,    179 

6.  What  may  be  received  under  an  execution, 181 

7.  Supplemental  proceedings, 181 

8.  Irregular  and  void  executions,  how  set  aside, 184 

EXECUTORS  AND   ADMINISTRATORS. 

1.  Who  entitled  to  administration, .  ■    ....  185 

2.  What  interest  they  take  in  the  estate, 186 

3.  Administrator  de  bonis  non, 186- 

4.  Executor  de  son  tort,   187 

5.  In  another  State,  what  they  may  do  in  this  State, 187 

6.  Of  the  effect  of  making  a  debtor  executor, 187 

7.  Of  co-executors  and  administrators, 188 

8.  Of  sales  by  them  and  their  purchaser  at  their  own  sales,   . . .  188 

9.  Of  suits  by  them, 189 

10.  Of  the  giving  them  time  to  plead, 189 

11.  Of  the  sale  of  land  for  assets, 189- 

12.  Of  their  liability  to  creditors, 196 

13.  Of  their  liability  to  legatees  and  next  of  kin, 202 

14.  Of  distribution  and  advancements, 204 

15.  Refunding  bonds, 205 

16.  Commissions, 205 

EXTRADITION, 205 

FACTOR 206 

FALSE  TOKENS, 206 

FENCES, 206 

FERRY, 207 

FIXTURES, 207 

FORCIBLE  TRESPASS, 20S 


INDEX.— VOL.  IV.  XI 

PAGES 

FORCIBLE  ENTRY  AND  DETAINER, 210 

FOREIGN  JUDGMENT, 211 

FORGERY, 211 

FRAUD. 

1.  In  conveyances, 213 

2.  In  auction  sales, 218 

FUGITIVE  FROM  JUSTICE, 218 

GAMING, 219 

GRANT, 219 

GUARANTY, 220 

GUARDIAN  AND  WARD. 

1.  Powers,  duties  and  liabilities  of  guardians, 220 

2.  Suit  on  guardian  bond,    229 

HABEAS  CORPUS, 230 

HIGHWAY, 231 

HOMESTEAD  AND  PERSONAL  PROPERTY  EXEMPTION, . . .  2;  2 

HOMICIDE, 215 

HUSBAND  AND  WIFE. 

1 .  Of  marriage, 238 

2.  Husband's  interest  in  his  wife's  property, 239 

3.  Wife's  power  over  her  separate  estate, 239 

4.  Agreement  between  husband  and  wife, 240 

5.  Conveyances  by  them, 241 

6.  When  wife  is  supposed  to  act  under  husband's  coertion, ....   243 

INDIANS, 243 

INDICTMENT. 

1.  When  an  indictment  will  lie  or  not, 244 

2.  Time  in  which  an  indictment  will  lie, 245 

3.  Quashing  indictments, 246 

4.  Form  and  matters  relating  thereto, 247 

5.  Plea  of  former  acquittal  or  conviction, 252 

6.  Removal  of,  into  the  United  States  Courts, 252 

7.  Of  the  trial,  verdict  and  judgment, 253 

INFANCY, 2G0 

INJUNCTIONS. 

1.  When  to  be  granted,  and  the  practice  in  injunctions, 261 

2.  Of  the  injunction  bond, 269 

INSANITY, 269 

INSOLVENT  DEBTORS,   269 

INSTITUTION  FOR  THE  DEAF  AND  DUMB  AND  THE  BLIND,  270 

INSURANCE, 271 

INTEREST 272 

JUDGMENTS. 

1.  Confession  of  judgment, 274 

2.  Judgment   default, 274 


XII  INDEX.— VOL.  IV. 

JUDGMENTS.— (Continued.)  pages 

3.  On  joint  and  several  notes,    274 

4.  Judgments  against  executors,  administrators  and  heirs, 274 

5.  Interlocutory  judgment, 275 

6.  Docketing  judgments  and  its  effect, 275 

7.  In  what  solvable, 278 

•'8.  Satisfaction  of  judgments, 278 

9.  Of  the  effect  of  a  judgment, 279 

10.  Of  proving  and  enforcing  judgments, 280 

11.  Of  dormant,  irregular,  void  and  erroneous  judgments, 281 

"12.  Of  vacating  judgments, 282 

13.  Petition  to  re-hear  judgments, 290 

JUDGES  EXCHANGING  DISTRICTS, ...... ........  290 

JUDGES  OF  THE  SUPERIOR  COURTS, 291 

JURISDICTION. 

1.  Of  Justices  of  the  Peace  in  civil  cases, 292 

2.  Of  Justices  of  the  Peace  in  criminal  matters, 293 

3.  Of  the  Clerk  and  Probate  Judge, 295 

4.  Of  the  Superior  Court  in  term,   or  of  the  Judge, 298 

■  5.   Of  the  Superior  Court  in  criminal  matters, 300 

l8.  Of  Courts  of  Equity, 301 

7.  Of  the  Federal  Courts, 304 

8.  Concurrent  jurisdiction  of  courts,    305 

JURY. 

1.  Of  challenges  to  the  jury, 305 

2.  Of  the  pay  of  jury, 307 

3.  Of  the  grand  jury, 307 

LANDLORD  AND   TENANT, 307 

LARCENY, 309 

LEGACY. 

1.  Construction  as  to  what'possess  and  who  takes, 313 

2.  Specific  or  general  and  of  the  abatement  of  legacies, 319 

3.  Whether  vested,  contingent  or  executory, 320 

4.  When  a  charge  upon  a  real  estate, 320 

5.  Of  debts  charged  upon  lands, 321 

6.  Bequest  of  the  residue, 322 

7.  Lapsed  and  void  legacies, 323 

8.  Of  the  assent  of  the  executor  and  its  effect, 324 

LICENSE, 325 

LLEN  OF  LABORERS  AND  OTHERS, 325 

LIMITATIONS  AND  LAPSE  OF  TIME, 326 

LIS  PENDENS, 328 

LOTTERY, 329 

MALICIOUS  PROSECUTION, 329 

MANDAMUS, 330 

MANSLAUGHTER 334 


INDEX.— VOL.  IV.  XIII 

PAGES 

MARSHALLING 335 

MILITARY  ORDERS 335 

MILLS, 335 

MINES, 337 

MISCEGENATION, 337 

MISTAKE 337 

MORTGAGE 338 

MUNICIPAL  CORPORATIONS 342 

NATURALIZATION, 342 

NEGLIGENCE, 343 

NEW  TRIAL, 343 

NOTICE 346 

OFFICE  AND  OFFICER 346 

ORDINANCES  OF  THE  CONVENTION 350 

OVERSEER 350 

PARDON 351 

PARTITIONS 351 

PARTNERSHIP 352 

PAYMENT 355 

PENITENTIARY 357 

PERJURY 357 

PLEADING. 

1.  General  principles  of  pleading 358 

2.  Verification, 359 

3.  Parties 359 

4.  Form  of  action, 362 

5.  Joinder  of  causes  of  action, 363 

6.  Plea  of  nul  tiel  record, 364 

7.  Under  the  Code  of  Civil  Procedure, ...  364 

8.  Of  the  complaint  or  declaration, 365 

9.  Of  the  pleas  and  demurrer, 366 

10.  Plea  of  a  former  suit 369 

11.  Counter-claim, 369 

12.  Or  the  venue 372 

13.  Of  the  verdict  and  judgment 374 

14.  What  is  cured  by  a  verdict, 375 

PLEADING  IN  EQUITY. 

1 .  Bill  of  discovery 376 

2.  Bill  to  perpetuate  testimony . 376 

3.  Scandal  in  pleading, 376 

4.  Decree, .377 

PLEDGE 378 

PROFESSION, 378 

PRACTICE. 

1.  In  equity, 379 

2.  Affidavits, 381 

3.  Appearance 382 

4.  Scire  Facias, 382 


XIV  INDEX— VOL.  IV. 

PKACTICE. -(Continued.)  PAGE8 

5.  Discontinuance, 3g3 

6.  Non-suit, 3g3 

7.  Dismissing  a  suit,  retraxit, 383 

8.  Consolidating  suits, 334. 

9.  Demand  of  power, 334 

10.  Under  the  Code  of  Civil  Procedure, 385 

1 1.  References,  motions,  orders,  rules  and  notices, 386 

12.  Some  miscellaneous  rules  of  practice, 387 

13.  Parties, 3g8 

14.  Of  the  trial  and  its  incidents, 389 

15.  Submitting  questions  of  fact  to  the  jury, .  390 

16.  Judge's  charge,    392 

17.  Motion  in  arrest  of  judgment _  4(jq 

18.  On  appeals, 4(J0 

19.  In  the  Supreme  Court, 40^ 

PROCESS, "  403 

PUBLIC  LAW 405 

PUBLIC  PRINTING 410 

PUBLIC  TREASURER,    '  ] " 410 

RAILWAYS *  410 

RAPE' "//""/."'.'.:'.'.!".".".;,..";".".4M 

RECEIVER 4U 

RECEIVING  STOLEN  GOODS, 414 

RECOGNIZANCE, 4U 

RECORD .......[....]'.'. 415 

RECORDARI  AND   SUPERSEDEAS, 416 

REFERENCE  UNDER  THE  C.  C.  P ........[..  418 

REGISTRATION, .  423 

RELEASE ...'...'.?.  423 

RELIGIOUS  CONGREGATION, 424 

REMOVAL  OF  CAUSES  TO  THE  FEDERAL  COURTS 424 

RENT '  424 

REPLEVIN, 425 

RETAILERS  OF  SPIRITUOUS  LIQUORS, !  426 

RIOT,   [[[  426 

ROAD, 427 

ROBBERY, 428 

ROSIN .429 

RULES  OF  PRACTICE, 429 

SALES. 

1.  Judicial  sales, 436 

2.  Sale  of  slaves 439 

SCALE  OF  DEPRECIATION, 440 

SCHOOL  COMMITTEE ...  444 

SET-OFF. 

1.  At  law, 444 

2.  In  equity, 446 


INDEX.— VOL.  IV.  XV 

SHERIFF.  PAGES 

1.  Election  and  terra  of  office, 447 

2.  Sales  by  sherifls  and  purchasers  thereat, 448 

3.  Sheriff's  return, 450 

4.  Interpleader  for  money  in  sheriff's  hands 451 

5.  Liability  of  sheriffs  and  their  sureties 452 

6.  Commissions  and  fees, 454 

SLANDER, 454 

SPECIAL  COURTS  IN  CITIES  AND  TOWNS 455 

SPECIFIC  PERFORMANCE, 456 

STAMPS, 456 

STATUTES 457 

STAY  LAW 458 

SUBROGATION, 458 

SURET5T  AND  PRINCIPAL 459 

TAXES  AND  TAXATION 463 

TENANTS  IN  COMMON, 466 

TENDER  AND  REFUSAL 467 

TOWNS  AND  CITIES 469 

TOWNSHIPS, 4?1 

TOWNSHIP  TRUSTEES, 472 

TRESPASS , 472 

TROVER, 473 

TRUSTS  AND  TRUSTEES 474 

USURY 482 

VAGRANCY 483 

VENDOR  AND   PURCHASER, 484 

WARRANTY, 487 

WASTE, 488 

"WIDOW. 

1.  Of  her  dower 488 

2.  Year's  provision, 493 

WILLS. 

1.  Attested  wills 493 

2 .  Holograph  wills, 494 

3.  Nuncupative  wills 495 

WITNESS, 495- 


DIGEST. 


ABATEMENT. 

I.     By  the  death  of  parties.  |      II.    For  what  cause  to  be  pleaded. 

I.     BY  THE  DEATH  OF  PARTIES. 

1.  Where  a  party  to  a  suit  had  died  in  June  1864:  Held, 
that  under  the  ordinance  of  the  Convention  (23d  June  1866) 
providing  that  the  time  which  had  elapsed  since  September 
1,  1861  should  not  be  counted  for  the  purpose  of  barring  ac- 
tions or  presuming  the  abandonment  or  satisfaction  of  rights, 
a  judgment  given  at  Fall  Term,  1866,  that  such  suit  had 
abated,  was  erroneous.     Morris  v.  Avery,  Phil.  L.  R.  238. 

2.  An  action  of  Trespass,  brought  to  recover  damages 
for  a  death  caused  by  a  wrongful  act,  (Rev.  Code,  c.  1,  s.  9,) 
does  not  abate  by  the  death  of  the  defendant.  Collier  v. 
Arrington,  Pbil.  L.  R.  356. 

3.  The  Ordinance  of  the  23d  June  1866  which  changed 
the  jurisdiction  of  the  courts,  prevented  an  action  from  abat- 
ing before  or  at  Fall  Term  1866,  by  the  death  of  a  defendant 
in  1864  after  the  Fall  Term  of  that  year.  Den  v.  Love,  Phil. 
L.  R.  435. 

4.  The  act  of  1866-'T,  c.  17,  s.  8,  which  suspends  the 
operation  of  the  statute  of  limitations,  &c  ,  until  January  1st 
1870,  is  neither  a  repeal,  alteration  nor  modification  of  the 
ordinance  of  June  23d  1866,  within  the  meaning  of  those 
terms  as  used  in  sec.  24  of  that  ordinance,  prohibiting  the 
General  Assembly  from  such  action.  Oliver  v.  Perry,  Phil. 
L.  R.  58  L. 

5.  The  provisions  of  that  act  prevent  suits  from  abating 
by  the  death  of  a  party  and  the  subsequent  lapse  of  two 
terms  of  the  court,  until  after  January  1st  1870.     Ibid. 

6.  An  action  brought  by  a  passenger  against  a  Rail  Road 
Company,  to  recover  damages  tor  injuries  to  her  person,  does 


2    ABATEMENT— II.— ACCOED  &  SATISFACTION 

not  abate  by  the  death  of  the  plaintiff.    Peebles  v.  N.  C.  R.  R., 
63  N.  0.  E.  238. 

7.  By  virtue  of  the  provisions  of  the  act  of  1871-'2,  chap- 
ter 30,  parties  have  a  right  to  have  their  suits  heard,  though 
such  suits  may  have  abated  through  their  own  inadvertence 
or  from  other  causes.     Long  v.  Holt,  68  1ST.  0.  E.  53. 

8.  A  suit  that  has  abated  by  the  death  of  the  principal 
in  a  Sheriff's  bond,  cannot  be  revived  against  the  sureties, 
when  the  original  summons  was  never  served  on  the  sure- 
ties.    Irwin  v.  Lowrence,  70  N.  0.  E.  282. 

9.  An  action  of  Ejectment  does  not  abate  by  the  death 
of  the  lessor  of  the  plaintiff,  and  there  is  no  necessity 
to  make  the  heirs  of  the  lessor  parties  to  the  suit,  except 
to  make  such  heirs  liable  for  costs,  the  supposed  lease  being 
in  no  way  affected  by  the  lessor's  death.  McLennon  v.  Mc- 
Leod,  70  N.  0.  E.  304. 

10.  Under  0.  0.  P.  sec.  64,  sub,  sees.  3  and  4,  an  action 
does  not  abate  by  the  plaintiff,  unless  so  adjudged  by  the 
Court.  That  section  invests  the  presiding  Judge  with  ple- 
nary powers  in  the  premises,  which  is  not  the  subject  of  re- 
vision by  this  Court,  unless  there  appears  an  abuse  of  those 
powers.     Baggerly  v.  Colvert,  70  N.  C.  E.  688. 

See  (Widow — Year's  Provision,  3.) 

II.     FOR  WHAT  CAUSE  TO  BE  PLEADED. 

1.  A  plea  in  abatement  is  the  proper  mode  of  taking  ad- 
vantage of  a  defect  in  the  affidavit  for  an  attachment.  Barry; 
v.  (Sinclair,  Phil.  L.  E.  7. 


ACCORD  AND  SATISFACTION. 

1.  The  principle  is  too  well  established  and  too  long  ac- 
quiesced in  to  be  disturbed,  that  an  agreement  by  a  creditor 
to  receive  a  part  in  discharge  of  the  whole  of  a  debt  due  to 
him  by  a  single  bill,  is  without  consideration  and  therefore 
void.     McKensie  v.  Culbreth,  66  N.  C.  E.  534. 

2.  To  this  rule  there  are  exceptions,  as  if: 

1.  A  less  sum  is  agreed  upon  and  received  before  the  day  of 
payment. 

2.  Or  at  a  different  place. 

3.  Or  money's  worth. 

4.  Or  where  a  general  composition  is  agreed  upon.     Ibid. 


ACCOUNT.— ACTIOX  ON  THE  CASE— I.        3 

3.  An  agreement  by  a  creditor  to  take  from  bis  debtor 
one-half  of  the  amount  of  his  debt  then  due  in  discharge  of 
the  whole,  is  without  consideration  and  void,  aud  this  is  so 
though  the  debtor  is  a  surety,  aud  the  debt  is  due  by  bond. 
Bryan  v.  Foy,  09  N.  C.  R.  45. 


ACCOUNT. 

1.  Iu  an  action,  of  the  nature  of  a  bill  in  equity  to  sur- 
charge and  falsity  an  account  taken  under  a  decree  in  a  form- 
er suit,  if  the  allegations  of  the  complaint,  upon  which  the 
plaintiff  bases  his  equity  to  have  such  account  and  settlement 
re-opened,  are  denied  iu  the  answer,  so  that  material  issues 
of  fact  or  law  are  raised  by  the  pleadings,  such  issues  of  fact 
must  be  tried,  before  a  motion  of  the  plaintiff  to  re-open  the 
account  can  be  entertained.  Houston  v.  Dalton,  70  N".  C. 
R.  002. 

2.  When  the  allegation  of  a  complaint  present  a  case  of 
equitable  jurisdiction,  as  in  an  action  to  surcharge  and  falsify 
an  account,  such  action  is  properly  instituted  iuthe  Superior 
Court.     Ibid. 


ACTION  ON  THE  CASE. 

I.     Wlien  the  action  is  sustainable.  |      II.     For  deceit. 

I.     WHEN  THE  ACTION  IS  SUSTAINABLE. 

1.  Where  the  defendants,  who  were  engaged  in  the  manu- 
facture of  saltpetre  up  to  the  14th  of  April  1805,  at  the  dis- 
continuance of  their  operations,  left  some  of  the  liquid  of 
which  saltpetre  is  made,  in  troughs  and  hogsheads,  covered 
with  boards,  and  enclosed  by  a  sufficient  fence,  and  three 
months  thereafter  the  plaintiff's  cattle  wandered  into  the  en- 
closure, drank  of  the  liquid,  and  died  from  the  effects  thereof, 
Held,  that  the  question  of  negligence  on  the  part  of  the  defend- 
ants, did  not  arise.     Morrison  v.  Cornelius,  03  N.  C.  R.  340. 

2.  If  a  party  injured  have  contributed  to  the  injury,  be 
cannot  recover  damages  on  account  of  it.     Ibid. 

3.  The  act  of  May  26th  1864,  by  which  persons  "while 
engaged  in  the  manufacture  of  saltpetre"  are  required  ''to  eu- 


4  ACTION  ON  THE  CASE— I. 

close  their  works  with  a  good  and  lawful  fence,"  under  pen- 
alty of  double  the  value  of  all  cattle  that  are  destroyed  by 
the  liquid  saltpetre,  does  not  apply  after  the  operations  are 
discontinued.     Ibid. 

4.  Whilst  a  slave  was  in  the  employment  of  a  Hail  Road 
Company,  as  a  Section  hand,  he  was  directed  by  an  agent  of 
the  Company  to  sleep  in  a  certain  house,  which  had  (unknown 
to  the  Company  and  to  himself,)  an  open  keg  of  powder  stand- 
ing under  one  of  the  beds,  placed  there  a  day  or  two  before, 
for  temporary  purposes,  by  a  servant  of  a  bridge  contractor 
with  such  Company;  the  slave  was  killed  by  an  explosion  of 
the  powd(  r,  caused  as  was  supposed,  by  fire  from  a  torch 
whilst  he  was  searching  for  his  hat:  Held,  that  the  Company 
was  chargeable  with  the  negligence  of  the  person  who  placed, 
and  left,  the  powder  in  such  a  position.  Allison  v.  B.  B.  Co., 
<J4  N.  C.  E.  382. 

5.  Where  fire  was  communicated  to  a  barn  by  sparks  from 
a  Steamboat,  and  the  boat  was  provided  with  an  effectual 
" spark-extinguisher"  which  was  not  at  the  time  in  use: 
Held,  that  the  fire  was  caused  by  negligence  upon  the  part  of 
the  Steamboat.  Anderson  v.  C.  F.  Steamboat  Co.,  64.  N.  C. 
E.  399. 

6.  Plaintiff  going  to  defendant's  warehouse  after  goods, 
stops  his  wagon  on  a  track  nearest  the  platform,  and  next  to 
the  main  track,  over  which  the  mail  train  passes,  so  near 
thereto  as  to  be  in  the  way  of  the  engine:  Held,  in  a  suit  to 
recover  damages  for  the  destruction  of  his  wagon  by  the  en- 
gine, that  his  loss  is  the  result  of  his  own  negligence,  and 
that  he  had  no  right  to  recover.  Murphy  v.  Wilmington  Sc 
Weldon  B.  B.  Co ,  70  N.  C.  E.  437. 

7.  Plaintiff  sent  his  cotton  to  defendants'  gin-house  to  be 
ginned ;  while  there,  the  gin  with  all  the  cotton  in  it  was 
consumed,  it  not  appearing  how  the  fire  originated :  Held, 
that  the  destruction  of  the  cotton  by  fire  was  not  prima  facie 
evidence  of  negligence;  and  further,  it  being  shown  that  the 
defendants  during  the  possession  of  the  plaintiff's  cotton  used 
ordinary  care,  they  are  not  liable  for  its  loss.  Bryan  v.  Foiv- 
ler,  70  N.  C.  E.  596. 

8.  Where  the  plaintiff's  horse  was  in  h's  pasture,  through 
which  the  defendant's  road  ran,  and  was  run  over  in  the  day 
time  by  one  of  the  engines  of  defendant,  it  appearing  on  the 
trial  that  the  horse  before  being  struck  ran  some  two  hundred 
yards  on  the  track,  and  that  there  was  nothing  to  prevent 
the  engineer  from  seeing  him,  and  that  no  alarm  was  given 
by  the  engineer  until  about  the  time  the  horse  was  run  over: 


ACTION,  &c— IL— ACT  OF  ASSEMBLY.         5 

Held,  that  there  was  such  negligence  on  the  part  of  the  en- 
gineer as  would  make  the  defendant  liable  iu  damages  for  the 
injury  to  the  horse.  Jones  v.  North  Carolina  R.  B.  Co.,  70 
N.  0.  E.  620. 

II.     FOR  DECEIT. 

1.  An  action  on  the  case  for  deceit,  will  not  lie  for  the 
vendee  against  the  vendor,  for  false  representations  by  the 
latter  as  to  the  quantity  of  land  sold;  he  should  have  had  a 
survey,  or  taken  a  covenant  as  to  the  quantity  sold  Credle 
v.  Swindell,  63  K  C.  E.  305. 

2.  The  maxim  ex  turpi  causa  non  oritur  actio,  does  not 
apply  to  prevent  a  party  to  a  statement  from  maintaining  an 
action  in  which  it  becomes  necessary  for  him  to  show  such 
statements  to  be  false.     Devries  v.  Haywood,  64  N.  C,  E.  83. 

3.  In  contracts  for  the  sale  of  land,  it  is  the  duty  of  the 
purchaser  to  guard  himself  against  defects  of  title,  quantity, 
incumbrance  and  the  like ;  if  he  fail  to  do  so,  it  is  his  own 
folly,  for  the  law  will  not  afford  him  a  remedy  for  the  con- 
sequence of  his  own  negligence.  Etheridge  v.  Tern1)]),  70 
K  O.  E.  713. 

4.  If,  however,  representations  are  made  by  the  bargain- 
or, which  may  be  reasonably  relied  upon  by  the  purchaser, 
and  they  constitute  a  material  inducement  to  the  contract, 
and  are  false  within  the  knowledge  of  the  party  making  them, 
and  they  cause  damage  and  loss  to  the  party  relying  on  them, 
and  he  has  acted  with  ordinary  prudence  iu  the  matter,  he  is 
entitled  to  relief.     loid. 

See  (Fraud — In  conveyances,  25.) 


ACT  OF  ASSEMBLY. 
See  (Statutes.) 


6 


AGENT  AND  PEINCIPAL— I.— II.— III. 


AGENT  AND  PRINCIPAL. 


I.     Who  is  an  agent. 
II.     What  an  agent  may  or  may  uot  do. 
III.     Of  the  liability  of  a  principal  for 

the  acts  of  his  agent  and  for 

notice  to  him. 


IV.     Of  the  liability  of  an  agent. 
V.     Factor. 


I.     WHO  IS  AN  AGENT. 

If  a  manufacturing  compauy  knowingly  permits  a  person 
to  sell  goods  in  a  store-honse  with  their  name  over  the  door, 
though  in  a  town  distant  from  their  place  of  business,  it  is  a 
circumstance  which,  taken  with  others,  such  as  that  he  sold 
their  manufactured  articles,  and  bought  bacon  and  other 
country  produce  for  them,  must  be  considered  as  tending  to 
prove  the  fact  that  he  was  acting  as  their  agent.  Gilbraith 
v.  Lineberger,  69  N.  0.  E.  145. 

II.     WHAT  AN  AGENT  MAY  OR  MAY  NOT  DO. 

1.  An  agent  acting  under  a  parol  authority  cannot  bind 
his  principal  by  deed.  Harshaw  v.  McKesson,  65  N.  0.  E.  688. 

2.  Payment,  in  1863,  to  a  Confederate  Eeceiver,  of  a  note 
for  money  belonging  to  citizens  of  New  York,  given  before 
the  late  war  to  a  citizen  of  this  State  who  acted  as  their 
agent,  and  surrendered  by  him  as  their  property  to  the  Ee- 
ceiver: Held,  to  be  no  defense  in  a  suit  against  the  maker, 
brought  by  the  payee,  to  the  use  of  the  beneficial  owners. 
Justice  v.  Hamilton,  67  N.  0.  E.  111. 

3.  An  authority  given  to  an  attorney  or  agent,  to  accept 
in  payment  of  a  debt  cash  in  New  York  or  Baltimore  funds, 
does  not  extend  to  accepting  the  bill  of  an  insolvent  drawer, 
no  matter  upon  whom  it  may  be  drawn.  The  credit  of  a  bill 
is  not  enhanced  by  the  credit  of  the  drawee  until  acceptance. 
Goldsborough  v.  Turner,  67  N.  0.  E.  483. 

4.  The  depreciation  of  Confederate  money  is  not  between 
private  parties,  constructive  notice  to  the  agent  and  the  per- 
son paying  the  same,  that  the  principal  will  not  receive  it. 
Otherwise,  where  the  receiving  agent  is  an  officer  of  the  Court, 
or  one  acting  in  a  fiduciary  capacity.  Grandy  v.  Ferebee,  68 
N.  C.  E.  356. 

III.     OF  THE  LIABILITY  OF  A  PRINCIPAL  FOR  THE  ACTS  OF  HIS  AGENT  AND  FOR 

NOTICE  TO  HIM. 


If  goods  are  sold  to  a  party,  on  the  representation  of 


AGENT  AND  PEINCIPAL— III.  7 

one  professing  to  be  his  agent  and  are  afterwards  delivered 
to  such  party  and  invoiced  to  him,  and  the-  invoice  received 
and  the  goods  are  used  by  him,  he  is  bound  for  their  value, 
and  under  such  circumstances  it  is  immaterial  whether  the 
person  professing  to  be  agent  was  such  or  not.  Miller  v. 
The  Land  &  Lumber  Company,  06  N.  0.  E.  503. 

2.  In  order  to  avoid  such  responsibility,  the  party  to 
whom  the  goods  were  sent  should  have,  on  the  receipt  of  the 
invoice,  promptly  refused  to  receive — otherwise,  silence  gives 
consent  under  the  maxim  qui  tacet  clamat.     Ibid. 

3.  The  invoice  was  notice  that  the  credit  was  given  ta 
such  party.     I  bid. 

4.  In  such  case  it  is  immaterial  that  the  officers  of  such, 
party  (a  corporation)  did  not  intend  to  induce  the  seller  to 
believe  that  the  corporation  had  bought  and  would  pay  for 
the  goods,  or  that  they  would  not  have  kept  the  goods  if  they 
had  not  known  that  the  corporation  was  bound  to  pay  the 
seller  for  them.     Ibid. 

5.  The  rule  is,  that  when  one,  by  his  conduct,  uninten- 
tionally, gives  another  reasonable  ground  to  believe  that  a 
certain  state  of  facts  exists  and  the  other  acts  on  the  belief 
so  induced,  that  he  will  be  damaged  if  it  is  not  true,  the  per- 
son so  inducing  is  estopped  as  to  the  other,  afterwards  to 
deny  the  evistence  of  such  a  state  of  facts.     Ibid. 

6.  The  retention  of  the  goods  and  silence,  after  receipt  of 
invoice,  furnished  reasonable  ground  to  cause  the  sellers  to 
believe  that  the  corporation  ratified  the  sale  and  may  natu- 
rally have  prevented  them  from  taking  such  action  as  they 
otherwise  would  for  their  security.     Ibid. 

7.  Where  an  agent  is  authorized  to  sell  property,  he  must 
sell  for  money,  unless  otherwise  especially  instructed.  Brown, 
Administrator,  v.  Smith,  67  N.  0.  li.  245. 

8.  Therefore,  when  an  agent,  without  instruction,  sold  the 
property  of  his  principal  for  seven-thirty  bonds,  when  such 
bonds  were  not  circulating  as  money :  Held,  that  he  exceeded 
his  authority,  and  his  principal  was  not  bound  by  the  con- 
tract, uuless  ratified  by  him.     Ibid. 

9.  Where  such  bonds  were  received  by  the  principal  in 
exchange  for  his  property,  and  he  intended  to  repudiate  the 
contract,  it  was  his  duty  to  return  the  bonds  if  he  could  do 
so,  or  give  notice  to  the  parties  interested.  Acquiescence, 
without  a  sufficient  excuse  or  explanation,  would  amount  to 
ratification.     Ibid. 

10.  When  the  owner  of  property  and  his  agent  are  in  dif- 
ferent localities,  it  is  competent,  in  order  to  negative  the  idea 


8  AGENT  AND  PRINCIPAL— III. 

of  acquiescence  in  a  sale,  to  show  that  telegraphic  communi- 
cation between  the  two  points  was  cut  off,  and  that  the  wife 
of  the  principal,  who  was  confined  by  sickness,  endeavored  to 
send  a  telegram  repudiating  the  sale  on  the  part  of  her  hus- 
band.   Ibid. 

11.  A  sells  a  lot  of  tobacco  to  B,  to  be  delivered  at  the 
depot  by  a  certain  day  ;  A  informs  B  of  the  delivery  of  the 
tobacco  and  requests  him  to  come  to  the  depot  on  the  ap- 
pointed day  for  a  settlement,  aud  if  he,  A,  should  be  absent, 
to  inquire  of  one  F,  the  depot  agent,  for  him ;  B  arrives  in 
the  afternoon  of  the  day  appointed,  after  A  had  left,  aud  as 
requested  inquires  of  F  for  A.  F  informs  B  that  A  had  left 
with  him  a  lot  of  tobacco  for  him,  B,  at  the  same  time  hand- 
ing him  an  invoice  for  the  same,  made  out  in  A's  handwri- 
ting ;  B  pays  F  for  the  tobacco,  who,  on  the  next  day,  remits 
the  proceeds  to  A:  Held,  that  these  facts,  standing  alone, 
are  prima  facie  evidence  that  F  was  the  agent  of  A  to  de- 
liver the  tobacco  and  receive  the  money.  Pinnix  v.  McAdoo 
et  al,  68  N.  0.  R.  56. 

12.  Held  further,  that  the  agency  being  thus  established,, 
the  invoice  and  receipt,  as  well  as  the  declaration  of  the 
agent,  were  properly  admitted  as  evidence  of  the  settlement 
plaintiff's  claim  for  the  tobacco.     IMd. 

13.  When  one  permits  another  to  hold  himself  out  to  the 
public  as  his  agent  to  sell  and  buy  certain  kinds  of  goods  for 
him,  he  is  bound  by  the  acts  and  contracts  of  such  agent 
within  the  scope  of  his  authority,  but  that  authority  does  not 
extend  to  the  borrowing  of  money  or  buying  clothes  for  him- 
self.    Gilhraith  v.  Lineuerger,  69  N.  0.  R.  145. 

14.  A  plaintiff  who  has  indorsed  the  uotes  of  a  self-con- 
stituted agent  of  a  lunatic,  to  enable  such  agent  to  raise  mo- 
ney ostensibly  for  the  benefit  of  the  family  of  such  lunatic, 
which  money  was  used  by  the  agent  in  cultivating  the  farm 
of  the  lunatic,  can  only  recover,  in  a  suit  against  the  lunatic 
upon  the  notes  signed  by  the  agent,  so  much  of  his  debt  as 
he  can  show  was  actually  expended  for  the  necessary  support 
of  the  lunatic,  and  such  of  his  family  as  were  properly  charge- 
able upon  him.     Surges  v.  Pipkin,  69  N.  0.  R.  513. 

15.  What  an  agent  says  or  does,  within  the  scope  of  his 
agency,  and  while  engaged  in  the  very  business,  is  evidence 
for  or  against  his  principal.  His  declarations  made  subse- 
quently as  to  what  he  had  done,  is  not  evidence,  though  he 
may  continue  still  to  act  as  agent  generally,  or  in  other  mat- 
ters.    McComb  v.  North  Carolina  B.  B.  Co.,  70  N.  0.  R.  178. 

16.  Evidence  of  what  an  agent  said  in  regard  to  a  trans- 


AGENT  AND  PRINCIPAL— III.— IV.— V.         9 

action  already  passed,  but  while  bis  agency  for  similar  objects 
still  continued,  is  not  admissible  to  prove  the  contract  itself, 
although  it  is  competent  to  contradict  the  statemeut  of  the 
agent  that  no  such  contract  was  made.  Stenhouse  v.  Char- 
lotte &  Augusta  B.  B.  Co.,  70  N.  C.  R.  542. 

17.  If  such  evidence  is,  after  objection,  received  general- 
ly, without  confining  it  to  the  contradiction  of  the  statement 
of  the  agent,  it  is  error,  and  entitles  the  party  objecting  to 
its  reception  to  a  new  trial.    Ibid. 

IV.     OF  THE  LIABILITY  OF  AN  AGENT. 

1.  Where  an  agent  received  money  from  his  principal 
with  specific  instructions  to  pay  it  to  a  certain  creditor, 
which  he  failed  to  do,  but  made  a  different  application  of  it 
for  the  principal's  benefit,  and  the  creditor  made  no  demand 
upon  such  agent  until  after  he  had  parted  with  the  money 
and  accounted  for  it  with  the  principal;  Held,  that  the 
creditor  could  not  look  to  the  agent  for  such  money.  Dixon 
v.  Pace,  63  N.  0.  R.  603. 

2.  Where  the  agent  of  an  infant  loaned  its  money  in  1858 
to  a  firm  of  which  he  himself  was  a  member,  and  in  April 
1863  collected  it  in  Confederate  money,  the  firm  being 
entirely  solvent ;  Held,  that  he  was  liable  to  such  infant  for 
the  consequent  loss.     Shuford  v.  Bamsour,  63  N.  G.  R.  622. 

3.  For  mere  error  in  judgment,  an  agent,  with  authority 
to  do  the  best  he  can,  is  not  liable.  Long  v.  Pool,  68  N.  C. 
R.  479. 

V.     FACTOR. 

1.  Where  a  factor  receives  goods  with  instructions  to  ship 
them  to  a  certain  port,  and  makes  an  advance  upon  them ; 
nothing  more  appearing,  it  is  not  to  be  taken  that  he  engages 
(as  a  common  carrier)  to  ship  them  thither  at  all  hazards  ; 
but  only,  if  by  ordinary  diligence  he  can.  JBessent  v.  Harris, 
63  N.  G.  R.  542. 

2.  A  factor  residing  at  W,  who,  being  under  instructions 
to  ship  goods  from  that  place  to  A,  ships  them  to  B,  renders 
himself  liable  therefor;  but  if  his  principal,  upon  being  in- 
formed of  suoh  breach  of  instructions,  ratifies  the  act,  ex- 
pressly or  impliedly,  he  thereby  waives  his  right  to  complain 
of  it.     Ibid. 

3.  If  there  were  no  such  ratification,  the  measure  of  dam- 
ages (in  case,  that,  using  ordinary  diligence,  the  factor  could 


10  AGENT,  &C.—V.— AMENDMENT— I. 

not  ship  to  A,)  is  the  difference  between  the  price  at  W,  and 
at  B,  not  such  difference  at  A,  and  at  B.     Ibid. 

4.  Factors  have  a  right  to  definite  instructions  from  their 
principals,  and  in  case  instructions  are  obscure  or  contradic- 
tory, they  may  exercise  their  honest  and  diligent  discretion 
upon  the  subject  matter,  without  becoming  liable  for  results. 
lhid. 

5-  Whether  a  factor  is  entitled  to  a  discount  for  advances 
made  to  his  principal,  is  ordinarily  a  question  of  fact  to  be 
decided  by  a  jury.    Ibid. 


AMENDMENT. 

I.  Of  the  records.  III.    In  the  Supreme  Court. 

II.  Of  the  pleadings  and  proceedings. 

I.     OF  THE  RECORDS. 

1.  Where  the  transcript  of  the  record  of  an  indictment, 
&c,  for  a  misdemeanor,  which  had  been  removed  by  affidavit 
from  another  county,  foiled  to  show  that  the  defendant  had 
pleaded,  and  thereupon,  the  Solicitor  for  the  State  having 
suggested  a  diminution  of  the  record  therein,  this  was  ad- 
mitted by  the  defendant,  who  stated  that  he  had  pleaded 
Not  Guilty,  and  was  willing  that  the  record  should  be  amen- 
ded so  as  to  show  it;  Held,  to  have  been  competent  for  the 
Court  to  make  such  amendment,  and  that  the  Solicitor  had 
no  right  to  appeal  from  the  order.  State  v.  Wiseman,  63  N. 
C.  R.  536. 

2.  The  Superior  Courts  have  power  to  amend,  and  to 
supply  records  in  the  former  Superior  Courts  of  Law  and 
Equity,  and  also  in  the  former  County  Courts,  upon  proper 
notice  to  persons  interested.  Stanly  v.  Massingill,  63  N.  C. 
E.  558. 

3.  Where  an  order  of  amendment  given  in  the  County 
Court,  had  been  appealed  from,  and,  pending  the  appeal, 
that  Court  had  been  abolished,  and  its  records  transferred 
to  the  Superior  Court ;  Held,  that,  upon  an  affirmation  of 
the  order,  the  amendment  should  be  made  in  the  latter 
Court.     Simonton  v.  Chipley,  64  N.  C.  K.  152. 

4.  Whenever,  by  any  accident,  there  has  been  an  omis- 
sion by  the  proper  officer  to  record  any  proceeding  of  a  Court 
of  record,  the  Court  has  the  power,  and  it  is  its  duty  on  the 
-application  of  any  person  interested,  to  have  such  proceed- 


AMENDMENT— I.  11 

iug  recorded  as  of  its  proper  date;  and  such  amendment 
should  be  made,  even  though  the  rights  of  third  persons  may 
be  affected  thereby.     Foster  v.   Woodfin,  65  N.  0.  E.  29. 

5.  An  amendment  supplying  an  omission  in  the  record  of 
a  Court  differs  materially  from  one  made  for  the  purpose  of 
putting  into  a  process,  pleading  or  return,  something  which 
was  not  in  it  originally ;  as  an  amendment  for  that  purpose 
will  not  be  allowed  to  the  injury  of  third  persons.     Ibid. 

6.  Upon  a  motion  to  amend  a  record  of  a  Court,  it  is  not 
regular  or  convenient  collaterally  to  consider  what  the  effect 
of  the  amendment  will  be,  or  whether  the  Court  had  the 
right  to  do  what  it  is  alleged  that  it  did.  These  questions 
must  be  decided  in  some  proceeding  directly  for  that  pur- 
pose.    Ibid. 

7.  A  motion  to  amend  the  records  of  the  County  Courts 
which  existed  prior  to  the  adoption  of  the  present  Constitu- 
tion and  the  Code  of  Civil  Procedure,  in  any  matter  relating 
to  the  appointment  of  au  administrator,  or  qualification  of 
an  executor,  must  now  be  made  to  the  Judge  of  Probate, 
aud  not  to  the  Superior  Court  of  the  County.     Ibid. 

8.  The  Superior  Courts  have  the  right  to  amend  the  re- 
cords, technically  so-called,  that  is  relating  to  their  judicial 
action  as  Courts  proper,  of  the  late  County  Courts.  Commis- 
sioners of  For sy  the  Co.  v.  Blackburn,  68  N.  C.  E.  406. 

9.  It  is  no  error  in  the  Court  below,  on  a  trial  of  a  de- 
fendant for  larceny,  ''as  upon  a  plea  of  not  guilty,"  and  after 
a  verdict  of  guilty  to  amend  the  record  by  inserting  the  plea 
of  "  not  guilty."     State  v.  McMillan  e*  al,  68  N.  C.  E.  440. 

10.  Our  Superior  Courts  are  always  open  for  transaction 
of  business,  and  the  Judges  of  those  Courts  have  a  right  to 
hear  and  determine  upon  questions  of  amending  records  at 
Chambers,  as  well  as  in  term  time.  Falkner  v.  Hunt,  68 
K  C.  E.  475. 

11.  The  joinder  of  a  motion  to  amend,  by  restoring  a  part 
of  the  record  in  an  old  Equity  suit  for  partition  aud  sale,  with 
a  prayer  for  relief  by  the  correction  and  re- execution  of  a 
deed,  is  a  good  ground  for  demurrer,  which  is  however 
waived,  if  the  demurrer  is  not  filed  in  apt.  Long  v.  Fish,  70 
N.  C.  E.  674. 

12.  The  amendment  may  be  made  by  a  motion,  after  no- 
tice, in  the  original  cause,  to  the  Judge  of  the  Superior  Court, 
who  exercises  the  jurisdiction  heretofore  exercised  by  the 
Judge  of  the  Courts  of  Equity.     1  bid. 


12  AMENDMENT— II. 

II.     OF  THE  PLEADINGS  AND  PROCEEDINGS. 

1.  Even  after  final  judgment  has  been  entered,  a  court 
has  power,  at  any  time  during  the  same  term,  to  amend  the 
proceedings  in  a  suit.     Penny  v.  Smith,  Phil.  L.  R.  35. 

2.  Therefore,  where  a  petition  had  been  dismissed,  and 
the  petitioner  had  prayed  for  and  obtained  an  appeal  from 
the  order :  Held,  that  the  County  Court  had  power  during 
the  same  term,  to  allow  the  petition  to  be  amended,  also,  that 
the  terms,  upon  which  such  allowance  was  made,  was  a  mat- 
ter exclusively  within  its  discretion.     Ibid. 

3.  Where  the  affidavit  and  process  in  a  case  of  original 
attachment  described  a  defendant  as  "C.  E.  Thorburn,"  his 
name  in  full  being  "  Charles  E.  Thorburn,"  held,  that  the 
court  below  might,  at  any  time  before  final  judgment,  allow 
the  plaintiff  to  amend  the  proceedings  by  substituting  the  lat- 
ter name  for  the  former      Hall  v.  Thorburn,  Phil.  L.  R.  158. 

4.  The  note  upon  which  the  suit  had  been  brought  being 
signed  "0.  E.  Thorburn,"  qure  whether  the  amendment  was 
necessary.    Ibid. 

5.  Where  a  constable  had  levied  an  execution  on  land  and 
returned  the  same  to  the  County  Court,  and  from  an  order  in 
that  court  overruling  a  motion  for  a  vendi  exponas  the  plain- 
tiff appealed :  Held,  that  the  whole  record  was  carried  up, 
and  the  Superior  Court  had  the  power  upon  motion,  made 
there  for  the  first  time,  to  allow  the  constable  to  amend  his 
return.     Stancill  v.  Branch,  Phil.  L.  R.  217. 

6.  A  mistake  in  a  writ  as  to  the  particular  Monday  in  a 
month  upon  which  the  defendant  was  to  appear,  held  to  be 
immaterial  in  a  case  where  the  bail  bond  gave  the  Monday 
correctly,  and  the  defendants  were  not  actually  misled.  Mer- 
rill v.  Barnard,  Phil.  L.  R.  569. 

7.  The  Court  to  which  such  a  writ  is  returned  has  power 
to  amend  the  mistake.     Ibid. 

8.  An  affidavit  amended  by  order  of  the  court  must  be  re- 
sworn to  after  amendment,  or  it  will  be  considered  as  no  affi- 
davit.    Atlantic  Bank  v.  Frankford,  Phil.  L.  R.  199. 

9.  Where  a  summons  was  made  returnable, — and  the 
complaint,  and  answer,  in  chief,  were  filed,  before  the  Clerk, 
(July  1809,)  and  he  returned  the  case  to  the  next  term,  the 
docket  of  which  showed  the  names  of  the  respective  counsel 
marked  to  such  case :  Held,  that  at  Spring  Term  1870  it 
was  competent  for  the  Judge  to  amend  the  summons  by  mak- 
ing it  returnable  to  the  term,  in  accordance  with  the  Act  of 
1868-'69,  c.  76.     Thomas  v.  Womack,  64  K  C.  R.  657. 


AMENDMENT— II.  13 

10.  Under  sec.  132,  0.  C.  P.,  the  Courts  possess  the 
power  at  any  time  before  or  after  judgment,  to  amend,  by 
adding  or  striking  out  the  name  of  any  party,  or  by  conform- 
ing the  proceedings  to  the  facts  proved.  Bulla rd  v.  Johnson, 
65  N.  0.  R.  43G. 

11.  When  a  lessor,  during  the  existence  of  a  lease,  con- 
veys by  deed  the  realty  to  a  third  person,  and  an  action  is 
afterwards  brought  for  the  rent  by  the  lessor,  the  Court  has 
the  power  to  amend,  by  striking  out  the  name  of  the  lessor, 
and  inserting  that  of  the  assignee.     Ibid. 

12.  The  Court  has  the  power  to  allow  the  amendment  of 
an  affidavit  upon  which  a  warrant  of  attachment  had  issued, 
although  the  former  affidavit  is  wholly  insufficient.  Brown 
v.  Hawkins,  65  N.  C.  R.  G45. 

13.  Notwithstanding  that  sec.  80,  ch.  113,  Acts  1S6S-'G9 
be  regarded  as  repealed  by  subsequent  acts,  and  although  it 
provides  "  that  any  executor  or  administrator  against  whom 
an  action  is  pending  in  any  Court  of  this  State,  and  who  has 
heretofore  entered  pleas  in  such  actions,  may  hereafter,  (as  a 
matter  of  right,  and  without  costs,)  amend,  strike  out,  or 
change  such  pleas  at  his  discretion,"  yet  the  provision  does 
not  contemplate  the  exercise  of  such  privilege  at  any  inde- 
rinite  period,  but  an  application  thereunder  must  be  made 
within  a  reasonable  time.  Biggs  v.  Williams,  GO  N.  C.  R. 
427. 

11.  A  delay  until  the  fourth  Court  after  the  passage  of 
the  Act  is  unreasonable  and  works  a  forfeiture  of  the  right, 
aud  the  granting  of  such  motion  is  wholly  in  the  discretion 
of  the  Court  below.     Ibid. 

15.  Wheu  a  complaint  demanded  judgmeut  for  the  pos- 
session of  land  under  a  deed  absolute  on  its  face,  which  was 
subsequently  decided  upon  appeal  to  this  Court  to  be  a 
mortgage,  and  a  venire  de  novo  on  that  ground  was  ordered : 
Held,  that  the  Superior  Court  had  power  (under  C.  C.  P., 
sec.  132)  when  the  case  came  on  for  trial  again,  to  allow  an 
amendment  of  the  complaint,  so  as  to  demand  judgment  for 
a  foreclosure  of  the  mortgage.  Bobinson  v.  Willoughbg,  G7 
N.  C.  E.  84. 

1G.  When  the  Superior  Court  has  power  to  amend,  the 
question  of  costs  is  entirely  in  its  discretion.    Ibid. 

17.  In  cases  of  appeal  from  the  Probate  Court  to  the 
Superior  Court,  the  Judge  has  the  same  right  to  allow 
amendments  as  if  the  case  had  been  constituted  in  his  Court. 
Sudderth  v.  McCombs,  G7  N.  C.  R.  353. 

18.  Amendments,  which  promote  justice  and  a  trial  on  the 


14       ,  AMENDMENT— II.— III. 

merits,  are  in  general  liberally  allowed;  but  iu  all  cases  the 
application  should  be  made  in  due  time,  or  sufficient  reasons 
be  shown  for  the  delay. — Ibid. 

19.  The  Court  below  has  the  power  to  amend  the  plead- 
ings by  adding  the  name  of  any  party,  who  may  be  necessary 
to  a  full  determination  of  the  cause.  Johnston  v.  Neville,  68 
N.  0.  E.  177. 

20.  When  a  Judge  of  the  Superior  Court,  makes  or  refu- 
ses to  make  amendments,  under  a  mistake  as  to  his  power, 
the  Supreme  Court  will  review  his  action  on  an  appeal ;  but 
when  such  amendments  lie  within  his  discretion,  the  exercise 
of  that  discretion  cannot  be  reviewed  by  the  Supreme  Court. 
McKinnon  v.  Faulk,  Adm'r,  68  K  C.  R.  279. 

21.  Pending  a  motion  for  final  judgment,  the  Judge  below 
has  a  light  to  allow  an  amendment,  striking  out  a  demurrer 
which  has  been  adjudged  during  the  same  term  to  be  frivo- 
lous, and  the  defendants  to  answer,  especially  when  satisfied 
that  the  demurrer  was  interposed  in  good  faith,  and  that  the 
defendants  had  a  valid  prima  facie  defense.  Norwood  v. 
Harris,  69  N.  C.  R.  204. 

22.  As  a  general  rule  every  Court  has  ample  power  to  per- 
mit amendments  in  the  process  and  pleadings  of  any  suit 
pending  before  it ;  but  the  Courts  have  no  such  power,  when 
an  amendment  proposed  to  be  made  will  evade  or  defeat  the 
provisions  of  a  statute.  Cogdell  Assignee,  v.  JExum,  69  N. 
C.  R.  464. 

23.  The  Superior  Court  has  the  power  to  amend  a  warrant 
issued  by  a  Justice  of  the  Peace  against  a  person  refusing  to 
work  the  road,  by  inserting  the  State  as  plaintiff'  instead  of 
the  overseer.     State  v.  Cauble,  70  N.  C.  R.  62. 

24.  The  presiding  Judge,  on  a  trial  in  the  Court  below, 
has  the  power  in  his  discretion  to  allow  or  refuse  amendments 
to  the  pleadings.     Ward  v.  Fairleg,  70  N.  C.  R.  537. 

25.  The  Court  below  has  no  power  to  allow  an  amend- 
ment to  an  execution,  so  as  to  divest  the  title  acquired  by  a 
subsequent  innocent  purchaser,  without  notice.  Williams  v. 
/Sharpe,  70  N.  O.  R.  582. 

See  (Process  8.) 


III.     IN  THE  SUPREME  COURT. 


When  an  erroneous  ruling  is  the  ground  for  an  appeal,  an 
amendment  cannot  be  allowed  in  the  Supreme  Court,  which 
would  defeat  the  cause  of  appeal.  Askew  v.  Pollock,  iiii  N. 
C.  R,  49. 


AMENDMENT— III.— AMNESTY.  15 

AMNESTY. 

1.  The  Supreme  Court  will  look  into  the  merits  of  a 
prosecution  comiug  within  the  scope  of  the  act  of  1800-7, 
c.  3,  entitled  "  An  act  granting  a  general  amnesty  and  par- 
don of  all  officers  and  soldiers,"  &c,  so  far  as  to  ascertain 
whether  the  defendants  are  clearly  entitled  to  an  acquittal. 
If  so  entitled  a  new  trial  will  be  granted  that  they  may  save 
costs ;  it  will  not  be  granted  if  their  innocence  is  doubtful. 
State  v.  Blalock,  Phil.  L.  E.  242. 

2.  By  Beade,  J.,  the  distinction  between  pardon  and 
amnesty  discussed  and  stated :  A  pardon  is  granted,  usually 
by  the  executive,  to  one  who  is  guilty,  either  before  or  after 
conviction;  amnesty,  by  the  Legislature,  to  those  who  may 
be  guilty,  generally  in  classes  and  before  trial.     Ibid. 

3.  The  act  of  180G-'7,  c.  3,  includes  both  amnesty  and 
pardon,  and  the  court  will  place  a  liberal  construction  upon 
its  terms,  that  its  benefits  may  be  extended  to  as  many  as 
possible.    Ibid. 

4.  The  amnesty  act  of  1866-'7,  c.  3,  was  not  intended  to 
exempt  soldiers  from  punishment  because  the}/  were  soldiers, 
but  only  for  acts  committed  by  them  as  soldiers.  State  v. 
Coolc,  Phil.  L.  R.  535. 

5.  Therefore,  where  the  prisoner  was  charged  with  break- 
ing a  dwelling  house  and  stealing  a  watch,  money,  &c,  and 
he  failed  to  show  that  be  acted  under  military  orders  or  in 
the  discharge  of  a  military  duty,  the  fact  that  he  was  a 
soldier  was  held  to  be  no  bar  to  a  prosecution  for  burglary. 
Ibid. 

6.  In  a  case  where  a  prisoner  moved  a  Court  for  his  dis- 
charge ou  the  ground  that  his  offense  was.  within  the  provi- 
sions of  a  certain  amnesty  act,  and  sach  allegation  was 
admitted  by  the  Solicitor  for  the  State :  Held,  that  even  if 
the  act  required  a  plea,  in  order  to  show  its  application  to 
the  case  before  the  Court,  the  record  exhibited  a  substantial 
compliance  with  such  requirement.  State  v.  Keith,  03  N. 
C.  R.  140. 

7.  The  Ordinance  of  1808,  eh.  21),  repealing  the  Amnesty 
act  of  1800,  ch.  3,  is  substantially  an  ex  post  facto  law.  inas- 
much as  it  renders  criminal  what  before  its  ratification  was 
not  so,  and  takes  away  from  persons  their  vested  lights  to 
immunity.     Ibid. 

8.  The  Amnesty  Act  of  December,  1800,  does  not  embrace 
the  case  of  a  crime,  such  as  rape,  committed  prior  to  the  1st 
day  of  January,  1806,  and    have   no  connection    with  war 


16  AMNESTY. 

duties  or  war  passions,  but  extends  to  the  case  of  a  prisoner 
who  had  committed  a  homicide  prior  to  that  time,  which  was 
directly  connected  with,  and  grew  out  of  the  events  of  the 
war,  and  the  passions  engendered  by  it,  though  he  was  not 
acting  strictly  under  authority,  or  during  active  hostilities. 
State  v.  Shelton,  65  N.  0.  R.  294. 

9.  After  the  rehabilitation  of  the  State,  parties,  who  had 
been  arrested  as  recusant  conscripts,  had  a  right  of  action 
against  their  captors.  But  such  cases  of  action  have  been 
destroyed  by  virtue  of  the  Amnesty  Act  of  1866.  Franklin 
v.  Vannoy,  66  N.  0.  R.  145. 

10.  The  seizure  of  the  property  of  a  recusant  conscript,  at 
the  time  of  his  arrest,  is  a  mere  incident  to  the  arrest,  and 
the  cause  of  action  therefor  follows  the  fate  of  the  principal 
cause,  and,  is  likewise  embraced,  by  that  act.     I  bid. 

11.  The  Amnesty  Act,  thus  understood,  is  not  liable  to 
animadversion,  as  having  the  effect  to  divest  ''vested  right," 
or  otherwise  infringe  any  provision  of  the  Constitution.    I  bid. 

12.  During  the  late  rebellion,  the  Confederate  States,  and 
the  States  composing  it,  were,  to  all  intents  and  purposes, 
governments  de  facto,  with  reference  to  citizens  who  con- 
tinued to  reside  within  the  Confederate  lines,  hence,  the  Con- 
stitution of  the  Confederate  States  and  the  acts  of  its  Con- 
gress, and  the  Constitution  of  the  State  as  then  ordained 
and  the  acts  of  its  Legislature,  constituted,  during  the  con- 
tinuance of  the  rebellion,  the  law  of  the  land,  and  the 
scope  and  effect  of  the  Amnesty  Act  was  to  recognize  this 
principle.     Ibid. 

13.  The  Amnesty  Act  is  not  only  constitutional,  but  a 
wise,  beneficient  and  remedial  statute,  and  should  be  liber- 
ally construed,  on  the  maxim  privatum  incommodum  publico 
bono  pensatur.    I  bid. 

14.  When  a  homicide  was  committed  in  November,  1865, 
and  it  appeared  that  the  prisoner  and  deceased  belonged  to 
the  same  army,  and  that  the  quarrel  which  preceded  the 
homicide  did  not  grow  out  of  "any  war  duties  or  war  pas- 
sions," but  out  of  a  private  transaction  between  the  parties; 
it  was  held,  that  in  such  a  case  the  Amnesty  Act  did  not 
apply.     State  v.  Haney,  67  N.  C.  E.  567. 

See  (Public  Laws,  21-22.) 


APPEAL— I.— II.  17 


APPEAL. 


L     From  the  County  to  the  Superior 

Court. 
II.     From  a  Justice  to  the  Superior 

Court. 


III.  From  the  Clerk  or  Judge  of  Pro- 

bate to   he  Superior  Court. 

IV.  From  the  Superior  to  the  Su- 

premo Court. 


I.  FROM  THE  COUNTY  TO  THE  SUPERIOR  COURT. 

The  Clerk  of  a  County  Court  having  transmitted  to  the 
Superior  Court  a  case  in  which  an  appeal  had  been  obtained 
by  the  plaintiff,  no  appeal  bond  being  filed  by  inadvertence: 
Held,  that  upon  such  bond  being  filed  in  the  Superior  Court 
after  a  motion  to  dismiss  for  want  thereof,  it  was  probably 
competent  for  that  Court  to  refuse  such  motion  ; — and  that 
at  all  events,  it  was  proper  to  grant  an  application  for  a 
certiorari,  and  then  to  place  the  case  upon  the  trial  docket. 
Stickney  v.  Cox,  Phil.  L.  14.  495. 

See  (Mills,  12.) 

II.     FROM  A  JUSTICE  TO  THE  SUPERIOR  COURT. 

1.  Where  an  appeal  from  a  magistrate  is  regular  in  form, 
and  the  Court  discovers  no  error  in  the  proceedings, — the  judg- 
ment should  be  one  affirming  that  given  below,  and  not  dis- 
missing the  appeal.     Barringer  v.  Holbrook,  64  N.  C.  R.  540. 

2.  The  Code  of  Civil  Procedure  requires  no  surety  on  an 
appeal  from  a  Justice's  judgment.  Steadman  v.  Jones,  65 
N.  C.  R.  388. 

3.  On  an  application  to  a  Justice  of  the  Peace  for  a 
suspension  of  execution  after  a  recovery  by  a  landlord  against 
his  tenant,  the  Justice  has  a  discretion  as  to  the  sufficiency 
of  the  surety,  which  a  Judge  will  not  review,  in  the  absence 
of  any  suggestion  that  the  Justice  acted  dishonestly  or 
capriciously.     Ibid. 

4.  Sec.  17  of  chap.  227,  Acts  of  I860-' 70,  does  not  apply 
to  Justices'  judgments  which  do  not  exceed  the  sum  of 
twenty-five  dollars.     Street  v.  Bryan,  65  N.  C.  R.  611). 

5.  The  decisions  of  Justices  of  the  Peace  upon  questions 
of  fact  are  not  the  subject  of  review.     Ibid. 

6.  Sec.  539,  C.  C.  P.,  applies  to  appeals  by  defendants 
against  whom  judgment  is  rendered  by  a  Justice  for  $25  or 
less,  and  not  to  appeals  by  plaintiffs,  in  whose  favor  judg- 
ment is  given  for  $25  or  less,  and  who  fairly  claimed  more 
than  $25"due.     Cowles  v.  llaynes,  67  K  C.  R.  128. 


18  APPEAL— II.— III.— IV. 

7.  Upon  an  appeal  to  the  Superior  Court  by  a  plaintiff, 
in  an  action  commenced  before  a  Justice  of  the  Peace,  for 
the  recovery  of  $60  due  by  former  judgment,  the  plaintiff  is 
entitled  to  have  the  case  heard  de  novo,  and  for  that  purpose 
it  should  be  entered  on  the  Civil  Issue  Docket.  Wells  v. 
Sluder,  68  N.  C.  E.  156. 

8.  An  appeal  by  a  plaintiff,  from  a  judgment  rendered 
against  him  in  a  Justice's  Court,  for  $6.30,  costs  in  a  suit 
against  the  defendant  on  an  account  for  over  $80,  should  be 
entered  by  the  Clerk  on  the  trial,  or  Civil  Issue  docket  of  the 
Superior  Court,  to  be  tried  de  novo.  Such  an  appeal  cannot 
be  heard  by  the  Judge  at  Chambers.  Comm'rs  Jackson  Co. 
v.  Addington,  68  N.  C.  E.  254. 

9.  An  omission  to  give  the  notice  of  appeal  required  by 
sec.  535,  of  the  Code  of  Civil  Procedure,  strictly  within  the 
ten  days  therein  provided  for,  is  not  so  serious  a  default,  as 
will  preclude  a  party  from  the  right  to  have  his  case  reheard. 
Marsh  v.  Cohen,  68  N.  C.  E.  283. 

10.  No  judgment  against  the  sureties  to  an  appeal  from 
a  Justice  of  the  Peace  can  be  given,  until  after  a  return  of 
the  execution  against  the  principal,  unsatisfied.  Code  of 
Civil  Procedure,  section  542.  Rush  v.  Halcyon  Steamboat 
Co.,  68  K  C.  E.  72. 

See  (Jurisdiction — of  Justices  in  Civil  cases,  13.) 

in.  FKOM  THE  CLEBK  OR  JUDGE  OF  PROBATE  TO  THE  SUPERIOR  COURT. 

1.  When  an  appellant  elects  (under  C.  C.  P.,  s.  490,)  to  carry 
a  case  from  the  Probate  Court  to  the  judge  in  vacation,  it  is 
still  within  the  discretion  of  the  latter  to  hear  it  in  term  time  /■ 
and  vice  vena.     Rowland  v.  Thompson,  64  N.  C.  E.  714. 

2.  In  case  of  such  an  appeal,  if  there  be  a  further  appeal 
from  the  Judge  to  the  Supreme  Court,  the  latter  tribunal 
can  review  no  point  before  the  Probate  Court  that  was  not 
passed  upon  by  the  Judge.     I  bid. 

3.  The  power  to  revise  and  control  the  action  of  a  Clerk  of 
the  Superior  Court  in  passing  upon  the  sufficiency  or  insuffi- 
ciency of  bonds  to  be  taken  by  him,  necessarily  exists  with  the 
Judge,  whose  minister  and  agent  he  is ;  and  the  proper  mode 
of  bringing  the  question  before  the  Judge,  is  by  an  appeal  from 
the  ruling  of  the  Clerk.     Marsh  v.  Cohen,  68  N.  O.  E.  283. 

IV.  FROM  THE  SUPERIOR  TO  THE  SUPREME  COURT. 

1.  Upon  ambiguities  in  the  statement  sent  up  to  the  Su- 
preme Court,  the  presumption  will  be  against  the  appellant. 


APPEAL— IV.  19 

Wood  v.  Sawyer,  Phil.  L.  E.  251.     S.  P.  'Weaver  v.  Parker, 
Davis  v.  flftarpe,  Phil  L.  E.  479-18. 

2.  It  is  the  duty  of  the  party  appealing  to  specify  the 
points  upon  which  he  excepts  to  tMe  ruling  of  the  Court  upon 
the  trial  below.     Stout  v.  Woody,  63  N.  0.  E.  37. 

3.  Parties  to  appeals  have  no  right  to  waive  appeal  bonds 
so  far  as  costs  are  concerned-  Cape  Fear  &  Deep  River  N. 
Company  v.  Oosten,  63  IS.  C.  E.  204. 

4.  Where  both  parties  to  a  case  appeal,  the  Clerks  of  the 
Superior  Court  should  make  out  two  transcripts;  the  double 
appeal  constituting  in  the  Supreme  Court  two  cases.  Mor- 
rison v.  Cornelius,  63  X.  C.  E.  346. 

5.  In  case  of  an  appeal  from  an  interlocutory  order  the 
Court  is  confined  to  a  consideration  of  the  ve  my  point  on 
which  the  appeal  is  taken.     Sledge  v.  Blum,  63  X.  C  E.  374. 

6.  Where  a  rule  was  served  upon  a  plaintiff  to  justify  his 
security  for  the  prosecution  of  a  suit,  or  to  give  other,  and 
he  failed  to  do  so  by  the  required  time,  whereupon  the  suit 
was  dismissed  ;  Held,  that  the  refusal  of  the  Judge  to  accept 
a  bond  subsequently  tendered,  is  not  subject  to  review. 
Futrell  v.  Spivey,  63  N".  C.  E.  520 

7.  Cases  brought  to  this  Court  by  appeals  taken  without 
-notice,  (0.  C  P.,  §301)  will  be  dismissed  upon  motion. 
Campbell  v.  Allison,  73  N.  C.  E.  568.  Carlton  v.  Hart, 
Hampton  v.  Sjjainhour,  569. 

8.  An  appeal  being  now  the  act  of  the  appellant  alone,  no 
presumption  of  regularity  arises  because  of  its  having  been 
taken  during  a  term  of  the  court  from  which  it  comes.  Ibid. 

9.  Cases  sent  upon  pro  for ma  judgments  will  not  hereafter 
be  considered.     State  v.  Locust,  63  N.  C.  E.  574. 

10.  A  rule  having  been  made  in  the  County  Court  upon 
the  plaintiff,  to  justify  the  security  on  her  prosecution  bond 
on  or  before  Tuesday  of  August  Term,  1868,  or  such  suit  to 
be  dismissed,  that  term  was  not  held,  as  the  justices  were 
of  opinion  that  their  offices  had  terminated.  At  Fall  term 
1868  the  papers  in  this  case  with  others,  were  delivered,  by 
the  Clerk  of  the  County  Court  to  the  new  Superior  Court 
Clerk,  but  the  Civil  docket  was  not  taken  up  at  that  term 
for  want  of  time :  At  Spring  Term  1869,  on  Wednesday  of 
the  second  week,  being  the  first  day  of  taking  up  the  Civil 
docket,  the  defendant  moved  to  dismiss  the  case  because  of 
the  rule  of  the  County  Court— but  upon  the  plaintiff's  offer- 
ing to  give  security  then,  she  was  allowed  so  to  do  :  Held,  to 
have  been  a  matter  within  the  Judge's  discretion,  and  to  have 
been  properly  decided.     Smith  v.  Mitchell,  03  X.  0.  E.  020. 


20  APPEAL— IV. 

(Illustration  of  the  maxim  Actus  legis  nemini  facit  injur- 
iam.)     Ibid. 

11.  Error  in  the  charge  of  the  Court,  on  a  trial  for  crime, 
will  not  give  the  State  a  right  to  appeal  after  a  verdict  of  not 
guilty.     State  v.  Oredle,  03  K  0.  R.  500. 

12.  The  issue  mil  ticl  record,  includes  two  questions;  one, 
of  fact,  from  the  decision  of  which  in  the  Court  below  there 
is  no  appeal,  the  other,  of  law  deducible  from  such  fact,  from 
the  decision  of  which  below  there  is  an  appeal.  Simpson  v. 
Simpson,  03  JS".  O.  R.  534. 

.13.  The  Supreme  Court  has  appellate  jurisdiction  over 
questions  of  law  only,  and  so  cannot  review  the  exercise  of  a 
discretion  aiy  power  over  matters  of  fact:  Simonton  v.  Chip- 
ley,  04  N.  C.  R.  152. 

14.  Therefore,  it  cannot  review  a  question  as  to  the  pro- 
priety of  an  order  striking  out  a  judgment  for  irregularity 
turning,  in  some  degree,  upon  whether  it  were  given  without 
a  verdict,  and  in  the  absence  of  the  defendant  and  his  attor- 
ney.    Ibid. 

15.  Where  the  question  raised  by  the  appeal  is,  whether 
there  be  any  evidence,  &c,  it  will  be  taken  for  granted  that 
the  record  sent  up  contains  the  whole  of  the  evidence  bear- 
ing upon  the  point.     latton  v.  Hunt,  04  N.  C.  R  103. 

10.  The  immateriality  of  an  error,  on  the  trial  below,  must 
clearly  appear  on  the  face  of  the  record,  in  order  to  warrant 
the  Court  in  treating  it  as  surplusage  McLenan  v.  Chisliolm, 
04  K  C.  R.  323. 

17.  A  bond  had  been  executed  by  the  defendant,  leaving 
the  name  of  the  obligee  blank ;  the  bond  was  afterwards  exe- 
cuted by  others,  and  then  the  blank  was  filled  with  the  name 
of  the  plaintiff,  and  the  date  was  altered  ;  suit  having  been 
brought  upon  the  bond,  on  the  trial  the  plaintiff  offered  to 
show,  "that  the  siguers  of  the  paper  authorized  him  to  fill 
the  blank  and  make  the  alteration  of  date,  or  assented  to 
what  he  had  done :"  Held,  that,  as  parties  who  appeal  from 
rulings  below  in  regard  to  the  evidence,  must  set  forth  in  dis- 
tinct terms  the  evidence  rejected,  so  that  this  Court  may 
pass  upon  its  admissibility,  and,  as  the  proposition  above  did 
not  show  the  sort  of  evidence  tendered,  there  appeared  to  be 
no  error  in  its  exclusion.  Bland  v.  CHayan,  04  N.  C.  R.  471. 

18.  Where  it  is  suggested  in  the  Superior  Court,  that  a 
certain  case  called  for  trial,  was  to  abide  the  result  in  another 
case  that  had  been  determined  in  that  Court:  Held,  that  the 
finding  by  the  Judge,  in  favor  of  the  suggestion,  cannot  be 
reviewed  upon  appeal.     Carroll  v.  Hayivood,  04  iN".  C  R.  481. 


APPEAL— IV.  21 

19.  Directions  for  stating  cases  upon  appeal.  Pearsall  v. 
Mayers,  64  K  0.  E.  549. 

20.  Upon  an  appeal  from  an  order  vacating  a  judgment, 
for  want  of  service  of  the  process  by  which  the  action  was 
constituted,  it  is  necessary  that  the  record  show  how  the 
Judge  found  upon  the  question  of  such  service ;  it  must  pre- 
sent the  fact  as  found,  and  not  (as  here)  only  the  evidence 
bearing  on  such  fact.     Gardwell  v.  Cardwell,  04  K  0.  R.  621. 

^  21.  The  decision  of  the  Judge  upon  such  fact  is  conclu- 
sive ;  except  a  question  be  made  whether  there  were  any 
evidence  tending  to  establish  it,  or  whether  a  given  state  of 
facts  constituted  service.     Ibid. 

22.  A  plaintiff  can  appeal  from  a  decision  of  a  Judge  at 
Chambers  refusing  an  injunction.  Bank  v.  Jenkins,  C4 
1ST.  0.  E.  719. 

23.  The  Supreme  Court  may  allow  an  appellant  to  sub- 
stitute a  sufficient,  for  an  insufficient,  appeal  bond,  after  a 
motion  by  the  appellant  to  dismiss  the  appeal  for  such  defect. 
Robeson  v.  Lewis,  G4  N.  C.  E.  734. 

24.  Attention  called  to  the  provisions  in  regard  to  appeal 
bonds,  in  the  C.  C.  P..  sec.  303,  as  affected  by  section  309. 
Ibid. 

25.  Cases  in  equity  pending  at  the  adoption  of  the  present 
Constitution,  cannot  now  be  transferred  for  trial  to  this 
Court  ;  they  must  be  heard  below,  and  can  only  be  consti- 
tuted here  by  appeal     Royers  v.  Goodwin,  G4  N.  C  E,  278. 

26.  Appeals  from  interlocutory  judgments  are  only 
allowed  in  civil  suits,  and  this  by  virtue  of  Eevised  Code, 
chap.  34,  sec.  27.  Therefore,  when  the  Court  found  from  ex 
parte  affidavits  that  the  defendant,  during  the  trial  of  an 
iudictment  for  larceny,  was  guilty  of  tampering  with  a  juror, 
and  for  such  conduct  ordered  a  juror  to  be  withdrawn  and  a 
mistrial  made,  the  defendant  had  no  right  to  appeal  to  this 
Court.     State  v.  Bailey,  65  N.  C  E.  426. 

27.  Although  the  granting  of  an  issue  is. a  discretionary 
act  of  the  Court,  a  mistake  in  the  exercise  of  that  discretion 
is  a  just  ground  of  appeal.  If  an  issue  be  refused,  and  the 
appellate  Court  should  think  that  a  contrary  decision  would 
have  been  a  sounder  exercise  of  discretion,  it  will  correct 
the  order  of  the  Court  below.  Redman  v.  Redman,  65 
N.  0.  E  546. 

28.  No  appeal  is  allowed  on  the  part  of  the  State,  where 
;i  general  verdict  of  not  guilty  has  been  reudered.  State  v. 
Phillips,  66  N.  C.  E.  646. 

29.  An  appeal  cannot  be  taken  on  the  State  docket  from 


22  APPEAL— IV. 

.-"an  interlocutory  order  or  judgment.     State  v.  Jefferson,  66 
N.  0.  K  300. 

30.  Where  it  appears  to  this  Court  that  the  Judge  below, 
has,  from  the  statement  of  the  appellant,  the  objections  of 
the  appellee  and  his  own  notes,  been  enabled  to  make  out  a 
case  containing  the  substantial  merits  of  the  controversy, 
the  appeal  will  not  be  dismissed,  although  there  was  great 
irregularity  in  the  proceeding  below.    Whitesides  v.  Williams, 

m  n.  c  ii  141. 

31.  Nor  will  the  appeal  be  dismissed,  because  the  state- 
ment of  the  J  udge  below  was  made  out  of  the  District  in 
which  the  case  was  tried  unless  the  record  shows  that  the 
appellee  demanded  to  be  present,  and  that  by  reason  of  his 
absence,  he  was  prejudiced,  especially  when  the  error  consists 
in  the  rejection  of  material  and  competent  evidence.     Ibid. 

32.  This  Court  is  disposed  to  extend  liberality  in  matters 
of  appeal-practice,  as  the  profession  have  not  yet  become 
familiar  with  the  new  system.     Ibid. 

33.  Where  issues  to  be  tried  by  a  jury,  are  tendered  by 
the  plaintiff,  and  such  issues  are  objected  to  by  the  defend- 
ant, and  others  tendered,  and  the  presiding  Judge  directs 
those  tendered  by  the  plaintiff  to  be  submitted:  Held,  that 
there  can  be  no  appeal  to  the  Supreme  Court  from  such  pre- 
liminary order.     School  Committee  v.  Kesler,  66  1ST.  C  E.  323. 

34.  Rules  III,  IV  and  V,  adopted  by  the  Supreme  Court 
at  June  Term,  1871,  discussed  and  fully  explained  by 
Pearson,  C.  J.     Ibid. 

35.  On  appeal  to  this  Court,  an  undertaking  of  appeal 
must  be  sent  up  with  the  transcript.  Felton  v.  Elliott,  6(> 
N.  C  R.  105. 

36.  It  is  the  right  and  duty  of  an  appellant,  subject  to 
the  provisions  of  the  Code,  to  direct  what  part  of  the  record 
shall  be  sent  up ;  only  so  much  should  be  sent  up  as  will 
show  that  there  was  a  case  duly  constituted  in  Court,  and 
the  verdict,  judgment,  and  such  portions  of  the  proceedings, 
evidence  and  instructions  of  the  Judge,  as  will  enable  the 
Court  to  pass  on  ihe  exceptions.  Sudderth  v.  MoCombs, 
67  N.  C.  li.  335. 

37.  The  jurisdiction  given  to  the  Supreme  Court  by  the 
Constitution  is  appellate,  upon  any  matter  of  law  or  legal  in- 
ference. No  issue  of  fact  shall  be  tried  before  it.  The  phrase 
"issues  of  fact,"  is  a  technical  one  and  must  be  understood  in 
its  legal,  technical  sense,  as  including  only  such  issues  as  are 
joined  in  the  pleadings,  and  does  not  forbid  the  Court  from 
deciding  questions  of  fact  which  arise  iucidently  upon  mo- 


APPEAL— IV.  23 

tions;  at  least,  not  in  cases  where  the  decision,  though  finally 
for  the  purposes  of  the  motion,  does  not  conclude  the  rights 
of  the  parties,  as,  on  motion,  to  grant  or  vacate  injunctions, 
Rodman  Judge,  arguendo-  Foushee  v.  Fattersholl,  07 
N".  0.  R.  453.     (But  see  Post  Sec.  53.) 

38.  The  questions  of  fact  which  incidentally  arise,  upon 
exceptions  to  account,  differ  a  little  in  their  nature  from 
those  upon  a  motion  to  grant  or  vacate  au  injunction,  as  the 
decision  upon  them  is  necessarily  final  for  the  purpose  of  the 
action.  But  we  think  this  Court  has  never  decided,  that  it 
was  prohibited  from  reviewing  the  finding  of  a  Judge  of  the 
Superior  Court  in  such  case.  We  should  be  reluctant  so  to 
decide,  as  it  is  difficult  to  conceive  that  the  law  of  North 
Carolina  ever  intended  to  confer,  on  a  single  Judge,  the  vast 
and  dangerous  power  of  deciding  all  questions  of  fact  so  aris- 
ing, without  responsibility,  and  without  liability  to  review  or 
correction,  even  in  cases  of  plain  and  evident  mistake.     Ihid. 

39.  A  defendant  who  has  confessed  judgment  has  no  right 
of  appeal  from  such  judgment;  but  where  an  appeal  was 
allowed  in  such  case  by  a  Justice  of  the  Peace,  and  the  plain- 
tiff failed  to  move  to  dismiss  the  appeal  in  the  Superior 
Court,  the  Supreme  Court  may  pass  by  the  irregularities 
and,  regarding  the  proceedings  in  the  nature  of  a  writ  of 
false  judgment,  consider  the  errors  assigned  upon  the  record. 
Rush  v.  Halcyon  Steamboat  Co ,  07  N.  C.  R.  47. 

40.  All  intendments  are  taken  most  strongly  against  a 
party  alleging  error  on  the  record ;  therefore,  where  a  defen- 
dant confessed  judgment  before  a  Justice  on  a  note  given  to 
the  plaintiff,  as  administrator,  for  the  rent  of  a  house,  and 
theu  appealed  and  objected  in  the  Superior  Court  that  the 
plaintiff  had  no  right  of  action ;  held,  on  appeal  to  the  Su- 
preme Court,  the  record  showing  nothing  to  the  contrary, 
that  it  must  be  presumed  that  the  plaintiff's  intestate  had  au 
estate  for  years,  and  not  au  inheritable  estate  in  the  premi- 
ses.    Ibid. 

41.  In  appeals  from  the  former  Superior  Courts  of  Law 
purely  discretionary  powers  of  such  Courts  were  never  re- 
viewed by  the  Supreme  Court.  Otherwise,  in  appeals  from 
the  Courts  of  Equity,  in  which  every  order  and  decree  of  such 
Court,  affecting  the  rights  of  parties,  were  the  proper  sub- 
jects of  review  by  the  Supreme  Court.  Long  v.  Holt  08 
N.  C.  R  53. 

42.  This  Court  will  not  review  a  decision  or  determina- 
tion affecting  neither  the  actual  nor  legal  merits  of  a  contro- 
versy.    Therefore,  An  appeal  from  au  order  continuing  in 


24  APPEAL— IV. 

force  a  former  order  made  in  the  cause,    was   dismissed. 
Child's  v.  Martin  et  al,  68  K  0.  R.  307. 

43.  An  agreement  of  parties,  that  the  decision  of  the 
Judge  below,  in  an  old  equity  suit  upon  a  question  of  fact 
submitted  to  his  determination,  shall  be  final  and  conclusive,, 
does  not  deprive  either  party  of  their  right  of  appeal,  and  of 
having  the  case  heard  de  novo  in  this  Court  Falkner  v> 
Hunt,  68  N.  0.  R  475. 

44.  The  Supreme  Court  has  no  jurisdiction  to  review  the 
decision  of  a  Judge  below,  on  a  pure  question  of  fact.  Camp- 
bell v.  Campbell  et  al,  68  1ST.  C  R.  157. 

45.  This  Court  will  not  adjudicate  a  hypothecal  case, 
which  may  or  may  not  arise,  for  the  mere  purpose  of  advis- 
ing as  to  circumstances  altogether  contingent  and  uncertain. 
Young  v.  Young,  68  N.  C.  R.  309. 

46.  An  appeal  cannot  be  taken  in  State  cases  from  an 
interlocutary  judgment,  and  it  is  only  by  statute  that  such 
appeals  can  be  taken  in  civil  cases.  State  v.  Wiseman,  68 
18F.  C.  R-  203. 

47.  In  our  practice,  both  before  and  since  the  establish- 
ment of  the  Constitution  of  1868,  the  Supreme  Court  has  all 
the  powers  which  a  Court  of  Errors  had  at  common  law: 
Hence  it  follows,  That  as  a  writ  of  error  is  not  a  continuation 
of  the  original  suit,  but  is  a  new  suit  by  the  party  against 
whom  judgment  is  rendered,  to  reverse  that  judgment,  an  ap- 
peal vacates  the  judgment  below,  and  this  Court  will  give 
such  judgment  as  the  Court  below  should  have  given.  Bush 
v.  Halcoyn  Steamboat  Co.,  68  N.  C  R.  72. 

48.  Upon  an  appeal  from  a  judgment  of  the  Superior 
to  the  Supreme  Court,  the  whole  case  is  taken  up  to  the 
latter  Court,  whether  the  appellant  give  an  undertaking  with 
sufficient  security  (or  in  lieu  thereof  make  a  deposit  of  money) 
to  secure  the  amount  of  the  judgment,  or  to  secure  the  costs 
only,  as  provided  in  sections  303  and  304  of  the  C  C.  P.,  the 
right  of  the  appellee  to  issue  execution  in  case  of  the  under- 
taking being  to  secure  the  costs  of  the  appeal  only  is  given, 
instead  of  the  deposit  of  money  to  abide  the  event  of  the  ap- 
peal.    Bledsoe  v.  Nixon,  69  N.  L.  R.  81. 

49.  To  enable  insolvent  defendants,  convicted  in  criminal 
actions  to  appeal  from  judgments  of  the  Court  below,  it  must 
appear  by  affidavit  that  they  are  wholly  unable  to  give  secu- 
rity for  the  costs,  and  that  they  are  advised  by  counsel  that 
they  have  reasonable  cause  for  the  appeal  prayed  for,  and 
that  the  application  is  in  good  faith.  State  v.  Divine,  69* 
;N\  C  R.  390. 


APPEAL— IV.  25 

50.  Until  the  entry  on  the  judgment  docket  by  the  clerk, 
no  appeal  from  a  judgment  rendered  in  term  time  is  effect- 
ual, and  such  entry  must  be  within  ten  days  after  the  judg- 
ment is  rendered.     Bryan  v.  Hubbs,  69  N.  0.  R.  423. 

51.  The  undertakings  necessary  to  perfect  an  appeal  may 
be  given  within  a  reasonable  time  after  notice  of  the  appeal 
has  been  given.  And  after  such  appeal  has  been  perfected, 
it  is  the  duty  of  the  clerk  to  give  notice  thereof  to  the  sheriff, 
in  order  that  any  execution  which  may  have  issued  may  be 
superseded.     Ibid. 

52.  A  Judge  of  the  Superior  Court  has  no  power  to  make 
an  order  authorizing  a  person  who  has  been  permitted  to  sue 
in  forma  pauperis  to  appeal  to  the  Supreme  Court  without 
giving  securiry  for  the  costs  of  the  appeal,  and  for  the  want 
of  such  security  the  appeal  will  be  dismissed  with  costs. 
Mitchell  v.  Sloan,  69  N.  C.  R.  10.  (Note— Such  power  is 
now  given  by  the  Act  of  1873-'4,  Sec.  60.) 

53.  The  Supreme  Court  has  no  jurisdiction  under  the 
Constitution,  to  consider  the  evidence  and  review  the  finding 
of  the  Court  below,  in  regard  to  facts,  as  well  as  in  regard  to 
'•legal  inference,''  whether  such  issues  of  fact  are  triecTby  the 
Judge,  or  by  a  jury,  or  are  made  by  the  pleading,  as  under 
the  old  system,  or  are  eliminated  by  the  Court  from  com- 
plaint and  answer,  or  by  means  of  exceptions  to  a  report. 
Keener  v.  Finger,  70  N.  C.  R.  35. 

54.  If  an  appellant  fails  to  assign  and  prove  an  error,  the 
judgment  although  erroneous  must  be  affirmed.  Filey  v. 
Fay,  70  X.  C  E.  303. 

55.  In  an  appeal  to  this  Court,  it  is  the  duty  of  the  appel- 
lant to  cause  to  be  prepared  a  concise  statement  of  the  case, 
embodying  the  instructions  of  the  Judge  as  signed  by  him, 
if  there  be  any  exceptions  thereto,  and  the  requests  of  the 
counsel  for  instructions,  if  there  be  any  exception  on  account 
of  the  granting  or  withholding  thereof,  and  stating  separately 
in  articles  numbered,  the  errors  alleged.  The  appellant  can- 
not except  to  the  charge  of  the  Judge  on  the  trial  below,  for 
the  first  time  in  this  Court.  Sampson  v.  Atlantic  &  North 
Carolina  B.  R.  Co.,  70  N".  C.  R.  404. 

56.  All  questions  of  practice  and  procedure  as  to  amend- 
ments and  continuances  arising  on  a  trial  in  the  Court  below, 
are  in  the  discretion  of  the  presiding  Judge,  from  whose 
judgment  thereon  there  is  no  appeal.  C.  0.  P.  sec.  133. 
Austin  v.  Clarice,  70  N.  C.  R.  458. 

See  (Contempt  4-13.)  (Judgments — Of  vacating  judg- 
ments, 20,  31,  36,  38,  39.)     (Practice— On  Appeals  ) 


26  APPEENTICES. 


APPRENTICES. 

1.  An  illegitimate  free  negro  child  who  has  not  gained  a 
new  settlement  by  a  year's  residence  in  some  other  county 
is,  for  the  purpose  of  being  apprenticed,  subject  to  the 
jurisdiction  of  the  Court  of  that  county  in  which'  its  mother 
was  settled  at  the  time  of  its  birth.  Ferrell  v.  Boyhin,  Phil. 
L.  E.  9. 

2.  A  master  mny  recover  damages  of  any  one  who,  after 
demand  made,  detained  his  apprentice.     Ibid. 

3.  A  county  court  has  no  power  to  bind  as  apprentices, 
persons  who  have  no  notice  of  the  proceedings  for  that 
purpose  ;  and  it  is  prudent  in  the  court  to  require  that  such 
persons  shall  be  present  when  bound.  In  the  matter  of 
Ambrose,  Phil.  L.  E.  91. 

4.  A  county  court,  upon  application  by  the  master  to 
whom  it  has  bound  an  apprentice,  has  power,  and,  in  a  fit 
case,  it  is  its  duty,  to  restore  to  his  possession  such  appren- 
tice, if  at  the  time  of  application,  he  is  a  runaway.  Beard 
v.  Hudson,  Phil.  L.  E.  180. 

5-  Where  a  father  so  acts  as  to  render  his  house  no  longer 
habitable  by  his  children,  it  is  a  desertion  of  them  by  him, 
within  the  meaning  ot  Eevised  Code,  ch.  5,  sec.  1.  Stout  v. 
Woody,  63  N.  0.  E.  37. 

6.  One  who  seduces  away  and  employs  the  apprentice  of 
another,  is  liable  to  the  master  for  the  value  of  his  services 
during  the  time  that  he  is  so  seduced  and  employed.     Ibid. 

7.  Where  an  apprentice,  then  nineteen  years  and  two 
months  old,  was,  in  July,  1860,  upon  his  master's  removal 
from  the  State,  hired  out  by  him  for  the  rest  of  that  year 
and  also  for  the  year  1861 :  held,  that  it  was  error  for  the 
court  to  instruct  the  jury,  "  that  if  the  consideration  of  the 
notes  given  for  the  value  of  the  apprentice  during  the  above 
years  was  not  the  assignment  of  the  full  unexpired  term  of 
the  apprentice,  but  only  a  hiring  by  the  master  for  the  years 
1860  and  1861,  the  plaintiff  would  be  entitled  to  recover;" 
and  that  he  ought  to  have  submitted  the  following  instruc- 
tions to  the  jury:  Was  it  the  eflect  of  the  transaction  that 
the  plaintiff  transferred  his  mastership  of  the  apprentice  to 
the  defendant  ?  If  yea,  he  cannot  recover;  if  nay,  the  defen- 
dant is  liable.     Biggs  v.  Harris,  64  N".  0.  E.  413. 

8.  The  statute  in  reference  to  binding  out  apprentices, 
0.  0.  P.,  sec.  484,  must  be  construed  as  if  it  read,  "  All 
orphans,  the  profits  of  whose  estates  will  not  support  them, 


APPRENTICES— ARBITRATION,  &c— I.       27 

aud  who  are  likely  to  become  chargeable  upon  the  county,  or 
whose  moral  or  physical  condition  requires  it,  shall  be  bound 
out."     Mitchell  v.  Mitchell,  67  N.  0.  R.  307. 

0.  When  an  application  is  made  to  a  Probate  Judge  to 
bind  out  children  as  apprentices,  prudence  requires  that  they 
should  be  present,  and  it  is  his  duty  to  observe  such  prudence, 
unless  there  be  some  sufficient  excuse  for  omitting  it.     Ibid. 


ARBITRATION   AND  AWARD. 

I.     When  to  be  sustained  or  set  aside,     j    II.     Construction  of  awards  and  rera- 

I  edy  thereon. 

I.     WHEN  TO  BE  SUSTAINED  OR  SET  ASIDE. 

1.  An  award  of  arbitrators,  to  whom  a  case  of  trespass, 
q.  c.f.  was  referred,  that  there  was  ''no  trespass,"  enables 
the  court  to  dispose  of  the  case,  aud  should  not  be  set  aside 
for  uncertainty      Harrelson  v.  Pleasants,  Phil.  L.  R  365. 

2.  When  an  award  fails  to  dispose  of  the  costs,  each  party 
must  pay  his  own.  costs.     Ibid. 

3.  Arbitrators  are  no  more  bound  to  go  into  particulars, 
and  assigD  reasons  for  their  award,  than  a  jury  is  for  its  ver- 
dict. Their  duty  is  best  discharged  by  a  simple  announce- 
ment of  the  result  of  their  investigations.  Blossom  v.  Van 
Amrinae,  63  N.  C.  R.  65. 

4.  Where  arbitrators  award  that  the  personal  property 
for  which  a  suit  has  been  brought,  belongs  to  the  defeudant, 
and  that  the  plaintiff  shall  pay  the  costs:  Held  to  be  final  as 
regards  such  suit.     Ibid 

5.  An  award  as  to  the  arbitration  fee,  held  to  be  valid, 
where  the  order  of  reference  expressly  entrusted  the  arbitra- 
tors with  its  determination.     Ibid. 

6.  An  award  must  have,  upon  its  face,  certainty  to  a  com- 
mon intent,  or  it  will  be  void:  Th ere/ore,  where  a  suit  in- 
volving land,  was  referred  to  arbitrators  to  be  settled,  and 
their  award  to  be  a  rule  of  Court:  Held,  that  an  award, 
that  the  plaintiff  "is  entitled  to  his  deed  for  the  premises 
mentioned  in  the  pleadings,  upon  the  payment  of  all  the  pur- 
chase money  and  the  interest  due  thereon," — where  the  plead- 
ings in  the  action  showed  a  difference  between  the  parties  in 
respect  to  the  amount  of  such  purchase  money, — should  be 
set  aside,  and  the  parties  be  at  liberty  to  proceed,  as  if  there 
had  been  no  reference.     Carson  v.  Carter,  64  N.  0.  R.  332. 


28  ARBITRATION  AND  AWARD— I  —II. 

7.  Where  parties  to  suits  in  Court  agreed  in  writing  to 
submit  to  arbitration  those  suits  and  all  matters  in  dispute 
between  them,  and  thereupon  the  arbitrators  made  an  award, 
and  disposed  in  a  particular  manner,  of  the  costs  in  the  suit 
pending:  Held,  that  the  Judge  had  no  power,  upon  a  return 
of  the  aword  into  Court,  to  alter  the  award  as  regards  such 
costs.     Hoover  v.  Neighbors,  64  N.  C  R.  429. 

8.  A  pa vol  submission  to  arbitration  of  the  title  to  land, 
is  void.     Pearsall  v.  Mayers,  64  N.  C.  R.  549 

9.  Although  arbitrations  are  favored  in  law  as  being  a 
court  selected  by  the  parties,  and  a  cheap  and  speedy  method 
of  settling  difficulties ;  and  although  awards  are  to  be  liber- 
ally construed  so  as  to  effect  the  intention  of  the  arbitrators, 
without  regard  to  technicalities  or  refinement,  yet  it  is  well 
settled  that  where  the  arbitrators  undertake  to  make  the 
case  turn  upon  matters  of  law,  and  mistake  the  law,  their 
award  is  void.     Leach  v.  Harris,  69  N.  C.  R.  52. 

10.  It  is  equally  well  settled  that  arbitrators  are  not  bound 
to  decide  a  case  "according  to  law,"  being  a  law  unto  them- 
selves, but  may  decide  according  to  their  notions  of  justice, 
and  without  giving  any  reason.     Ibid. 

11.  A  suit  is  referred  to  A.,  whose  award  is  to  be  a  rule  of 
Court,  and  who  reports  to  Fall  Term,  1872,  a  balance  due 
plaintiff;  neither  party  filing  exceptions  to  the  report,  the 
plaintiff  has  a  right  to  judgment  at  the  term  to  which  the  re- 
port is  made.  And  upon  motion  of  defendant,  the  cause  being 
continued,  at  the  ensuing  term  (still  no  exception  being  filed,) 
judgment  being  granted  pursuant  to  award,  his  Honor  com- 
mitted no  error  in  refusing  to  set  aside  the  judgment,  because 
the  defendant  filed  an  affidavit,  alleging  that  he  had  been 
misled  as  to  the  scope  and  intent  of  the  reference  by  the 
referee,  and  that  he  could  show  certain  facts  in  defense,  &c. 
Heed  v.  Farmer,  539;  Johnson  v.  Farmer,  69  N.  C.  R.  542. 

II.     CONSTRUCTION  OF  AWARDS  AND  REMEDY  THEREON. 

1.  Where  two  persons  are  appointed  as  arbitrators,  and 
it  is  provided  in  the  submission  or  rule  of  Court,  that  they 
may  select  an  umpire,  it  must  appear  on  the  face  of  the 
award  that  the  appointment  of  the  umpire  was  the  act  of  the 
will  and  concurring  judgment  of  both  the  arbitrators.  Crisp 
v.  Love,  65  N.  C.  R  126. 

2.  Where  two  persons  whose  lands  were  contiguous,  had 
a  suit  pending  about  the  boundaries  thereto,  and  afterwards 
entered  into  a  bond  agreeing  to  submit  all  questions  arising 


ARBITRATION  AND  AWARD— II.  29 

■about  the  boundaries  of  said  lands  to  A  and  B,  and  to  abide 
by  the  award  made  by  them,  and  also  in  the  said  bond  cov- 
enanted "that  the  party  who  shall  fail  to  keep,  abide  by, 
and  observe  the  decision  and  award  that  shall  be  made 
according  to  the  foregoing  submission,  will  pay  to  the  other 
the  sum  of  one  thousand  dollars,  as  liquidated,  fixed,  and 
settled  damages :"  held,  that  after  the  award  had  been  made 
by  A  and  B,  and  one  of  the  parties  placed  a  fence  over  the 
dividing  line  as  fixed  by  the  award,  and  on  the  laud  of  the 
other,  and  that  said  damages  were  not  of  greater  value  than 
five  dollars,  that  the  sum  specified  in  the  bond  is  to  be 
regarded  as  a  penalty,  and  not  as  liquidated  damages. 
Henderson  v.  Cansler,  03  N.  C.  R  542. 

3.  If  a  suit  be  referred  by  an  entry  on  the  docket  in  these 
words,  viz  :  "  this  case  is  referred  to  A  B,  who  shall  summon 
the  parties  before  him  and  hear  the  case,  and  his  award  shall 
be  a  rule  of  court,"  and  the  referee  files  a  paper  which  he 
styles  an  award,  in  which  he  finds  the  facts  and  his  conclu- 
sions as  an  award,  whether  it  is  to  be  treated  as  an  award 
under  a  rule,  or  a  reference  under  the  0.  0.  P.,  the  referee's 
finding  of  the  facts  is  equally  conclusive,  as  are  also  his 
conclusions  as  to  the  law  arising  on  the  facts,  except  probably 
where  he  undertakes  to  make  the  case  turn  upon  a  question 
of  law  and  clearly  mistakes  it.  Gudger  v.  Baird,  06 
X.  C  R    438 

4.  Where  a  case  had  been  referred  for  an  account  and 
report,  and  the  report  had  been  made  aud  set  aside  by  con- 
sent, and  then  by  consent  of  parties  it  was  ordered  that  the 
ease  be  remanded  for  an  additional  report,  showing  what 
fund  of  the  estate  still  remains  after  setting  aside  the  sum 
of  $2,000  due  the  plaintiff  B,  showing  also  "how  each  of  the 
children  of  the  testator  stand  towards  each  other  as  to  the 
amounts  received,  what  is  due  from  each  of  them  to  the 
administrators,  or  from  the  administrator  to  each  of  them, 
and  what  is  due  to  each  other :  Aud  for  the  better  adjustment 
of  the  matters  in  question,  it  is  referred  to  J.   H.  T.  as 
arbitrator,  whose  award  shall  be  a  rule  of  court,  aud  who 
shall  state  the  account  necessary  to  exhibit  what  is  here 
lequired,  &c  :  It  ivas  held,  that  it  was  a  reference  to  arbitra- 
tion, and  that  the  report  of  the  arbitrator  was  an  award,  and 
not  merely  the  report  of  a  referee  to  take  an  account,  and 
it  was  held  further  that  the  arbitrator  had  not  exceeded  his 
power  in  stating  an  account  of  the  whole  estate.     Hilliard 
and  tvife  et  al  v.  Rowland,  Admb;  08  JS".  C-  R.  500. 

5.  The  effect  of  a  reference  to  arbitrators  is  very  different 


30  ARBITRATION,  &c— II.— AREEST 


from  that  of  a  reference  under  the  Code.  Arbitrators  may- 
choose  an  umpire ;  they  are  not  bound  to  find  the  facts  sep- 
arately from  their  conclusions  of  law ;  they  are  not  bound  to 
decide  according  to  law ;  and  their  award  may  be  general, 
thus  "that  plaintiff  recover  $ and  costs.  Lusli  v.  Clay- 
ton, 70  N.  0.  R.  184. 

6.  An  agreement  that  an  award  shall  be  a  rule  of  court,  is 
merely  an  agreement  to  confess  judgment  according  to  the 
award,  when  it  shall  be  made.  If  the  parties  refering  their 
matters  in  controversy,  have  no  suit  in  court,  the  court  will 
not  compel  a  performance  of  their  agreement  by  attachment, 
as  it  will  if  the  subject  matter  has  been  brought  in  court  by 
suit  or  otherwise.     Ibid. 


ARREST. 

1.  When  an  affidavit,  made  to  obtain  an  order  of  arrest 
and  an  attachment,  is  based  upon  an  apprehension  by  the 
affiant  of  some  future  fraudulent  act  by  the  defendant,  such 
affidavit  must  specify  the  grounds  of  the  apprehension ;  but 
where  the  affidavit  relies  upon  an  act  already  done,  it  need 
state  it  only  in  general  terms  ;  as  here,  "That  the  said  P.  has 
disposed  of  and  secreted  his  property  with  intent  to  fraud  his 
creditors.     Hughes  v.  Person,  63  N.  0.  R.  548. 

2.  An  affidavit  that  the  defendant  "is  about  to  leave  the 
State,"  is  insufficient  as  a  basis  for  a  warrant  of  arrest ;  it 
ought  to  have  added  "with  an  intent  to  defraud  his  creditors, 
as  the  affiant  believes,"  and  then  set  forth  the  (/rounds  of  such 
belief,  so  as  to  show  some  probable  cause.  Wilson  v.  Barn- 
hill,  64  N.  0.  R.  121. 

3.  Refusal  to  allow  a  second  affidavit  to  be  filed,  is  an 
exercise  of  discretion,  which  cannot  be  reviewed  upon  appeal; 
the  plaintiff  might  have  filed  a  second  sufficient  affidavit 
immediately,  and  obtained  a  second  warrant  of  arrest.     Ibid. 

4.  A  private  person  may  arrest  for  felony,  when  it  appears 
that  it  is  necessary,  for  waut  of  an  officer  or  otherwise,  that 
he  should  do  so,  to  prevent  the  escape  of  the  felon.  In 
making  such  arrest  for  a  felony,  the  person  must  notify  the 
felon  of  his  purpose,  or  he  will  be  guilty  of  a  trespass.  State 
v.  Bryant,  65  K  0,  R.  327. 

5.  It  seems  that  a  private  person  who,  when  it  is  neces- 
sary for  him  to  act,  attempts  to  arrest  a  felon  guilty  of  a  cap- 
ital offence,  such  as  murder  or  rape,  may  kill  him  if  he  either 


AKEEST.— ARSON.— ASSAULT  AND  BATTERY.  31 

resists  or  flies,  but  he  has  no  right  to  kill  a  person  guilty  of 
a  felon  of  an  inferior  grade,  such  as  theft,  if  he  does  not  resist, 
but  only  attempts  to  escape  by  flight.     Ibid 

6.  A  plaintiff  who  is  allowed  to  sue,  in  forma  pauperis,  has 
no  right  to  an  order  of  arrest,  without  first  filing  the  under- 
taking required  in  sec.  152  of  the  Code  of  Civil  Procedure. 
Bowrrk  v.  Homesley,  68  N.  C.  R  91. 


ARSON. 

1.  A  building  of  hewn  logs  (twenty-six  feet  by  fifteen,)  di- 
vided by  a  partition  of  the  same,  upon  one  side  of  which  were 
horses,  and  upon  the  other,  corn,  oats  and  wheat,  (threshed 
and  unthreshed,)  also  hay,  fodder,  &c.,  having  sheds  adjoin- 
ing, under  which  were  wagons  and  other  farming  utensils,  is 
a  "barn"  within  the  meaning  of  that  word  in  the  Rev.  Code, 
c.  34,  s.  2,  punishing  with  death  the  burning  of  barns  having 
grain  in  them.     State  v.  Cherry,  63  N.  C.  R.  493. 

2.  The  comma,  at  the  end  of  the  word  "  store,"  in  section 
2,  of  Rev.  Code,  c.  34,  is  a  misprint ;  the  enrolled  bill  in  the 
office  of  the  Secretary  of  State  has  no  such  comma,  and  thus 
shows  that  the  word  is  used  as  an  adjective,  qualifying  the 
word  "house"  which  follows.     State  v.  Pulley,  68  N.  C.  R.  8. 

3.  The  Constitution  does  not  repeal  section  2,  ch.  34,  of 
the  Revised  Code ;  it  repeals  only  so  much  of  it  as  imposes 
death  as  a  punishment :  ]$ence,  one  can  be  now  indicted, 
couvicted  and  punished  for  burning  a  mill-house  in  1863. 
State  v.  King,  69  N.  C.  R.  419. 


ASSAULT  AND  BATTERY. 

1.  Where  an  offer  to  strike  is  made  with  a  deadly  weapon 
the  law  does  not  allow  it  to  be  explained  by  words  used  at 
the  time.  Therefore,  where  the  defendant,  whilst  standing 
in  the  door  of  his  grocery,  held  a  pistol  in  his  hand  some- 
times bearing  upon  A  and  sometimas  not,  and  swearing  that 
if  A  came  in  he  would  shoot  him  :  held,  that  he  was  guilty  of 
an  assault.     State  v.  Myerfield,  Phil.  L.  R.  108. 

2.  Discussion  of  the  distinction  between  "  attempts  to 
strike "  and  "  offers  to  strike,"  and  between  the  effect  of 


32  ASSAULT  AND  BATTERY. 

words  used  where  an  ''offer  to  strike  "  is  made  with  a  deadly 
weapon,  or  without  one.     Ibid. 

3.  An  indiscriminate  assault  upon  several  persons  is  an 
assault  upon  each .     State  v.  Merritt,  Phil.  L.  E.  134. 

4.  The  facts  beiug  that  gun  was  fired  by  one  of  two 
defendants,  whilst  the  other  was  present  aiding  and  abetting : 
lield  that  a  charge  in  the  indictment  that  both  committed 
the  assault  was  thereby  made  good.     Ibid. 

5.  A  mere  threat  unaccompanied  by  an  offer  or  attempt 
to  strike,  is  not  an  assault.     State  v.  Mooney,  Phil.  L.  E.  434. 

6.  An  indictment,  charging  that  the  defendant  and 
another  "did  commit  an  affray  by  fighting  together  by 
mutual  and  common  consent  in  public  view,"  includes  a 
charge  of  a  mutual  assault  and  battery,  and  the  defendant 
may  be  convicted  under  it,  though  the  grand  jury  found  the 
bill  not  true  as  to  the  other  party.  State  v.  Wilson,  Phil.  L. 
E  237. 

7.  Where  one  was  indicted  for  an  assault  and  battery, 
and  it  was  proved  that,  in  a  former  indictment  against  him 
and  others  for  a  riot,  the  assault  charged  had  been  given  in 
evidence,  with  other  acts  of  like  character,  his  conviction  of 
the  riot  was  held  to  be  a  bar  to  the  second  prosecution. 
State  v.  Lindsay,  Phil.  L.  E.  468. 

8.  The  laws  of  this  State  do  not  recognize  the  right  of  the 
husband  to  whip  his  wife,  but  our  courts  will  not  interfere  to 
punish  him  for  moderate  coned  ion  of  her,  even  if  there  had 
been  no  provocation  for  it.     State  v.  Rhodes,  Phil.  L.  E.  453. 

9.  Family  government  being  in  its  nature  as  complete  in 
itself  as  the  State  government  is  in  itself,  the  courts  will  not 
attempt  to  control,  or  interfere  with,  in  favor  of  either  party, 
except  in  cases  where  permanent  or  malicious  injury  is 
inflicted  or  threatened,  or  the  condition  of  the  party  is 
intolerable.     1  bid. 

10.  In  determining  whether  the  husband  has  been  guilty 
of  an  indictable  assault  and  battery  upon  his  wife,  the  crite- 
rion is  the  effect  produced,  and  not  the  manner  of  producing 
it,  or  the  instrument  used.     Ibid. 

11.  Where  one  was  going  down  the  steps  which  led  from 
a  court  room,  and  an  other  who  was  before  him  in  striking 
distance,  stoped,  turned  about,  clenched  his  right  hand  (the 
arm  beiug  bent  at  the  elbow  but  not  drawn  back)  and  said, 
I  have  a  good  mind  to  hit  you,  whereupon  the  the  former 
walked  away  and  went  down  another  staircase :  held,  that 
the  latter  was  guilty  of  an  assault.  State  v.  Hampton, 
63.  N.  0.  E.  13. 


ASSAULT  AND  BATTERY.  33 

12.  Where  one  drew  a  pistol,  (neither  cocked  nor  presen- 
ted,) and  ordered  another,  who  was  within  ten  steps,  to  leave 
a  public  place,  or  he  would  shoot  him:  held  to  be  an  assault. 
State  v.  Church,  63  N.  C.  R.  15. 

13.  Where  a  landlord,  whilst  engaged  in  collecting  his  ad- 
vancements out  of  a  crop  in  a  held,  which,  by  agreement  with 
the  cropper,  was  to  remain  his  "till  he  was  reimbursed,"  on 
being  assaulted  by  the  latter  with  a  deadly  weapon,  knocked 
him  down  with  a  stick,  held  that  he  was  not  thereby  guilty  of 
assault  and  batterv.     State  v.  Burwell,  03  N.  G.  R.  601. 

14.  Where,  upon  some  words  between  husband  and  wife 
he  threatened  to  leave  her,  and  used  to  her  very  improper 
language,  when  she  started  to  go  off,  and  he  caught  her  by 
the  left  arm,  and  said  he  would  kill  her,  drawing  his  knife 
with  the  other  hand  ;  then,  holding  her,  struck  at  her  with, 
the  knife,  but  did  not  strike  her,  and  again  drawing  back  as 
if  to  strike,  his  arm  was  caught  by  a  bystander ;  but  after 
all,  no  injury  or  blow  was  inflicted:  held,  to  have  been  a  case 
in  which  the  courts  will  interfere,  and  that  the  husband  was 
guilty  of  an  assault.     State  v.  Mabrey,  6-4  ET.  C.  R.  592. 

15.  Where  a  feme  covert  commits  an  assault  and  battery 
in  the  presence  of  her  husband,  it  is  presumed,  in  the  absence 
of  evidence  to  the  contrary,  that  she  did  it  under  his  con- 
straint.     State  v.   Williams,  65  N.  C.  R.  398. 

16.  This  presumption  of  law,  however,  may  be  rebutted 
"by  the  circumstances  appearing  in  evidence,  and  showiug 
that,  in  fact  the  wife  acted  voluntarily,  and  without  constraint. 
Ibid. 

17.  Semble,  That  this  principle  applies  only  to  misde- 
meanors committed  by  the  wife  iu  the  presence  of  her  hus- 
band.    1  bid. 

18.  Where  the  defendant  went  to  a  prosecutor  and  said 
"I  once  thought  we  were  friends,  but  I  understand  you  have 
said  thus  and  so  about  me,  and  you  have  to  take  it  back  ;" 
the  prosecutor  refused  to  take  it  back,  whereupou  the  defen- 
dant put  his  hand  open  and  flat  on  the  prosecutor's  breast, 
and  pushed  him  back  some  steps,  when  he  fell  over  a  flour 
barrel :  it  was  held,  to  be  an  assault  and  batterv.  State  v. 
Baker,  05  X.  C.  R.  332. 

19.  In  an  indictment,  under  the  Act  of  lS68-'69,  chap. 
167,  sec.  8,  for  an  assault  with  a  deadly  weapon  with  intent 
to  kill,  it  is  sufficient  to  charge  that  the  assault  was  made 
"with  a  certain  pistol  then  and  there  loaded  with  gun-powder 
and  one  leaden  bullet,"  without  stating  that  it  is  a  "  fire- 
arm "   or  •*  deadly  weapon,"  because  the  court  can  see  and 

3 


34  ASSAULT  AND  BATTERY. 

■will  take  notice  that  a  loaded  pistol  is  both.     Stale  v.  Swannr 
65  N.  0.  R.  330. 

20.  An  assault  with  a  deadly  weapon  with  intent  to  kill 
is  not  made  a  felony  by  the  Act  of  1808-'09,  ch.  107,  sec.  8,. 
and  therefore  it  is  not  necessary  to  charge  that  the  assault 
"was  made  with  a  felonious  intent.     1  bid. 

21.  If  a  person  be  at  a  place  where  he  has  a  right  to  be, 
and  four  other  persons  having  in  their  possession  a  manure 
fork,  a  hoe  and  a  gun,  by  following  him  and  by  threatening: 
and  insulting  language,  put  him  in  fear,  and  induce  him  to 
go  home  sooner  than,  or  by  a  different  way  from,  what  he 
would  otherwise  have  gone,  are  guilty  of  an  assault  upon 
him,  though  they  do  not  get  nearer  to  him  than  seventy-tive 
yards,  and  do  not  level  the  gun  at  him.  State  v.  Rawles,  05 
]y.  O.  R.  334. 

22.  When  a  number  of  persons  meet  together,  and  there 
is  evidence  tending  to  show  a  common  design  to  commit  an 
assault  upon  another,  they  may  all  be  properly  found  guilty, 
though  only  one  of  them  used  threatening  and  insulting 
language  to  hivn.     Ibid. 

23.  Where  a  number  of  persons  Were  charged  with  hav- 
ing met  together  and  then  gone  to  commit  an  assault  upon 
another  person,  and  it  was  proved  on  the  part  of  the  State, 
that  one  of  the  number  had  just  had  a  conversation  with 
him:  it  was  held,  that  the  defendants  had  a  right  to  prove 
the  details  of  the  conversation  as  a  part  of  the  res  gestee  to 
prove  the  quo  animo  of  their  coming  together.     Ibid. 

24.  If  A  pursues  B  with  a  stick  or  piece  of  board  raised 
in  a  striking  attitude,  and  is  stopped  by  a  third  person  when 
within  two  or  three  steps  of  B,  this  constitutes  an  assault,. 
although  A  could  not  have  stricken  B  with  the  stick  in  his 
hand  at  the  place  where  he  was  stopped.  State  v.  Vannoyr 
05  K  0.  R.  532. 

25.  A  husband  has  no  legal  right  to  chastise  his  wife;. 
but  if  no  permanent  injury  has  been  inflicted,  nor  malice,, 
cruelty  nor  dangerous  violence  shown  by  the  husband,  it  is 
better  to  leave  the  parties  to  forget  and  forgive.  State  v. 
Oliver,  70  N.  0.  R.  00. 

20.  The  Act  of  1808-'G9,  chap.  178,  by  which  Justices  of 
the  Peace  were  given  jurisdiction  finally  to  try  certain  petty 
assaults  under  certain  circumstances,  was  repealed  by  the 
act  of  1870-'71,  chap.  43,  which  says  that  in  all  cases  of 
assault  the  punishment  may  be  by  fine  or  imprisonment,  or 
both,  at  the  discretion  of  the  Court.  State  v.  Heidelburg, 
70  N.  0.  R.  490 
See  (Indictment — Plea  of  former  acquittal  or  co  iviction,  1-2.) 


ASSIGNMENT  IX  EQUITY.— ASSUMPSIT.      35 


ASSIGNMENT  IN  EQUITY. 

Where  a  suit  is  pending  against  A,  and  he,  in  considera- 
tion that  the  suit  be  dismissed,  &c.,  agrees  to  pay  one-half  of 
the  claims  in  cash,  and  to  pay  50  per  cent,  of  his  assets,  or  so 
much  as  may  be  necessary,  as  they  may  be  reasonably  col- 
lected to  discharge  the  balance  of  the  claim,  this  is,  as  be- 
tween the  parties,  a  valid  equitable  assignment,  and  makes  A 
trustee  for  his  creditor  to  the  extent  of  the  agreement;  and, 
when  a  second  creditor  of  A  afterwards  briugs  suit  and  obtains 
a  judgment,  and  upon  the  return  of  an  execution  nulla  bona, 
procures  supplemental  proceedings  to  subject  enough  of  the 
debt  of  a  debtor  of  A  to  sat:sfy  his  judgment,  such  second 
creditor  only  acquires  a  lien  on  the  debt  owing  to  A,  subject 
to  the  first  creditor,  and  an  account  ought  to  be  taken.  Ques- 
tions, which  may  arise  after  an  account,  reserved.  Perry  v. 
Merchant's  Bank  of  Newbern,  09  N.  C.  R.  551. 

See  (Bank  and  Bank  Notes,  17.) 


ASSUMPSIT. 

1.  Where  A  &  Co.  entered  into  a  written  contract  with 
B  to  sell  off  a  stock  of  goods  and  pay  the  nett  proceeds  to  0, 
who  was  a  creditor  of  B:  Held,  that  C  had  no  right  of  ac- 
tion against  A  &  Co  upon  the  written  contract,  as,  for  al- 
leged want  of  care  in  choice  of  customers,  for  selling  upon  a 
credit,  &c.  That  0  might  sue  A  &  Co.  upon  the  Common 
counts,  for  any  nett  cash  received  by  him  upon  the  sales. 
That  C  could  not  recover  from  A  &  Co.  upon  the  common 
counts  or  otherwise,  for  money  due  upon  sales  on  credit  from 
individual  members  of  the  firm.  Wlnslow  v.  Lawrence, 
Phil.  L.  II.  505. 

2.  A  creditor  having  desisted  from  suing  his  debtor  upon 
request  by  a  third  person  to  that  effect,  the  latter  adding 
"He  has  put  property  in  my  hands  to  pay  his  debts,  and 
when  1  sell  it  I  will  pay  you  all  he  owes  you,"  held  that  an 
action  of  assumpsit  could  not  be  maintained  agninst  such  per- 
son, without  showing  that  he  had  received  money  from  the 
property  in  his  hands.     Hicks  v.  CrVchcr,  Phil.  L.  R.  35:;. 

3.  In  an  action  of  assumpsit,  the  rule  of  damages  in  a  suit 
upon  a  note  for  $105  payable  "in  gold,  or  its  equivalent  in 
the  currency  of  the  country,"  is — Such  an  amount  in  LT.  S. 


36  ASSUMPSIT.— ATTACHMENT— I. 

Treasury  Notes,  as,  at  the  time  the  note  became  due,  was 
worth  $107  iu  gold.     Mitchell  v.  Henderson,  63  N.  C.  E.  648. 

4.  Where  a  debtor  promised  his  creditor  to  leave  a  sum 
of  money  in  the  hands  of  a  third  person  in  part  payment  of 
what  was  due,  and  did  so,  the  third  person  agreeing  to  hold 
it  for  the  creditor:  Held,  that  upon  his  refusing  to  pay  it, 
the  creditor  could  bring  an  action  against  him  for  the  money. 
White  v.  Hunt,  64  N.  0.  E.  496. 

See  (Confederate  money,  1.)     (Payment,  3-4-5.) 


ATTACHMENT. 

I.     Original  and  under  C.  C.  P.  |    IV.     In  equity. 

II.     Garnishee  summoned.  V.     Under  the  liens  of  laborers  and 

III.     Judicial  attachment.  others. 

I.     ORIGINAL  AND  UNDER  THE  C.  C.  P. 

1.  A  bond  payable  to  the  plaintiff  in  an  attachment,  and 
conditioned  for  the  appearance  of  the  defendant,  &c,  is  not 
a  "bail  bond,"  within  the  meaning  of  the  Eev.  Code,  ch.  7, 
sec.  5,  and  therefore,  by  executing  such  a  bond  the  defend- 
ant does  not  obtain  a  right  to  replevy  and  plead.  Barry  v. 
Sinclair,  Phil.  L.  E.  7. 

2.  The  statute  upon  attachment  must  be  constructed 
strictly.     Ibid. 

3.  A  plea  in  abatement  is  the  proper  mode  of  taking  ad- 
vantage of  a  defect  in  the  affidavit  for  an  attachment.     Ibid. 

4.  The  creditor's  affidavit  under  Eev.  Code,  ch.  7,  sec.  1, 
must  state  that  the  removal  or  the  absence  from  the  county 
•or  State,  or  the  concealment,  on  the  part  of  the  debtor,  was 
for  the  2mrl)0se  °f  avoiding  service  of  ordinary  process. 
Leak  v.  Moorman,  Phil.  L.  E.  168. 

5.  An  attachment  issued  by  the  Clerk  of  a  Court  for  a 
sum  within  the  jurisdiction  of  the  Court  and  made  returnable 
to  the  proper  term  of  the  Court,  will  not  be  dismissed  for 
want  of  form  because  directed  "  to  any  Constable  or  other 
lawful  officer  to  execute  and  return  within  thirty  days, 
(Sundays  excepted,)"  it  appearing  that  it  was  executed  by 
the  Sheriff.     Askew  v.  Stevenson,  Phil.  L.  E.  288 

6.  Where  Court  was  not  held  at  the  return  term  of  an 
attachment,  nor  at  the  succeeding  term,  and  at  a  subsequent 
term  the  defendant  replevied  the  property  attached :  Held, 
that  the  cause  was  not  discontinued.     Ibid. 


ATTACHMENT— I.  37 

7.  After  replevying,  the  defendant  in  an  original  attach- 
ment has  a  right  to  demand  a  declaration  from  the  plaintiff. 
Maxwell  v.  McBrayer,  Phil.  L.  E.  527. 

8.  A  suit  for  breach  of  promise  of  marriage  cannot  be 
commenced  by  original  attachment.    IMd. 

9.  Under  the  act  of  1866-67,  ch.  68,  the  defendant  in  an 
original  attachment  might  replevy  and  plead  without  giving 
a  replevy  bond.     Holmes  v.  Sackett,  63  1ST.  C.  E.  58. 

10.  The  provision  in  the  Act  (Eev.  Code,  ch.  7,  sec.  16,) 
requiring  an  absconding  by  the  defendant  to  be  within  three 
months  in  order  to  warrant  an  attachment,  is  not  a  statute 
of  limitations,  and  therefore  is  not  within  the  various  Acts 
recently  passed  affecting  the  Statute.  Blanlcenship  v. 
McMahon,  63  N.  C.  180. 

11.  Defendants  in  original  attachment  may  appear  and  plead 
without  giving  bail.     Stephenson  v.  Todd,  63  X.  0.  E.  368. 

12.  In  such  cases  any  judgments  theretofore  obtained 
agaiust  garnishees  should  be  set  aside;  IMd. 

13.  And  if  money  had  been  collected  upon  such  judg- 
ments, that  should  be  repaid  to  the  garnishees;  not  paid  over 
to  the  defendant.     IMd. 

Note. — The  law  in  the  eleventh  and  thirteenth  sections 
above  has  been  modificated  by  the  Code  of  Civil  Procedure. 

14.  Attachment  under  the  Code  is  not  an  original  but  an 
auxiliary  remedy,  and  can  be  issued  only  for  the  causes  spe- 
cified §§  197—201.     Marsh  v.  Williams,  63  N.  C.  E.  371. 

15.  An  affidavit  which  alleges,  as  grounds  for  an  attach- 
ment, that  the  affiant  "believes  that  the  defendants  have  dis- 
posed of  their  property  and  are  still  doing  so,  with  the  intent 
to  defraud  their  creditors";  also,  that  "the  defendants  being 
largely  indebted,  if  not  insolvent,  have  sold  and  are  selling 
their  large  stock  of  goods  at  less  than  the  cost  of  the  same 
in  the  city  of  New  York,  and  have  disposed  of  other  valuable 
property  for  cash,"  is  not  only  sufficient,  but  very  full  and  ex- 
plicit.    Gashine  v.  Baer,  64  N.  C.  E.  108. 

16.  The  plaintiff  made  an  affidavit,  for  a  warrant  of  at- 
tachment, that  was  insufficient  in  point  of  form,  but  the  war- 
rant was  issued:  the  defendant,  as  ground  for  a  motion  to  dis- 
charge the  warrant,  made  a  counter  affidavit;  and  thereupon 
the  plaintiff  replied  with  another  affidavit,  the  form  of  which 
was  unobjectionable:  Held,  that,  upon  the  motion,  the  plain- 
tiff was  entitled  to  have  his  second  affidavit  considered,  and 
that  Us  completeness  did  away  with  what  otherwise  would 
have  been  the  consequences  of  defects  in  his  original  affidavit, 
(0.  C.  P.  §196.)     Clark  v.  Clarh,  64  N.  C.  E.  150. 


38  ATTACHMENT— I. 

17.  Notwithstanding  the  provisions  of  its  eleventh  sec- 
tion, the  act  of  1868-'69,  ch.  76,  Suspending  the  present 
Code,  is  to  be  construed  as  requiring  the  summons  in  cases 
where  the  defendant  is  a  wow-resident,  to  he  returned  to  the 
term  of  the  Court.     Backalan  v.  LiUhfield,  64  E".  C.  E.  233. 

18.  That  section  requires  the  warrant  of  attachment  to 
be  returned  before  the  Cleric.     Ibid. 

19.  An  attachment  which  specifies  no  day  or  place  of  re- 
turn, is  h  regular,  and  therefore  voidable ;  but  such  defect  is 
waived  if  the  defendant  appears  and  gives  an  undertaking  for 
the  re-delivery  of  the  property  seized.     Ibid. 

20.  A  Superior  Court  .;  udge  has  no  authority  to  vacate 
injunctions,  or  to  set  aside  attachments  regularly  granted, 
except  for  causes  pending  in  his  own  District.  Therefore 
■when  an  attachment  was  taken  out  in  the  third  Judicial  Dis- 
trict, the  Judge  of  t he  sixth  Judicial  District  was  unauthor- 
ized in  law  to  vac;  e  said  attachment.  Bear  v.  Cohen,  65 
N".  C.  E.  511. 

21.  An  attachmi  t  or  other  provisional  remedy  will  be 
vacated  without  any  undertaking  by  the  defendant,  by  a 
Judge,  if  on  its  face  it  appeals  to  have  been  issued  irregu- 
larly, or  for  a  cause  iusumient  in  law,  or  false  in  fact.     Ibid. 

22.  It  is  sufficient  to  authorize  a  warrant  of  attachment, 
if  the  affidavit  set  forth  "  that  defendant  was  about  to  assign, 
dispose  of,  or  secrete  his  property  with  intent  to  defraud  his 
creditors,"  and  then  specifies  "that  the  said  property  was 
secretly  removed  out  of  its  usual  place,  after  night,  and  found 
several  miles  distant,  and  when  it  was  overtaken  late  at  night, 
the  person  having  possession  thereof  made  conflicting  state- 
ments as  to  where  they  were  going,  and  whose  property  it 
was  they  had."     Brown  v.  Hawkins,  65  ~N.  C.  E.  645. 

23.  Under  the  provisions  of  the  C.  C.  P.,  an  attachment 
is  not  the  foundation  of  an  independent  action,  but  is  a  pro- 
ceeding in  the  cause,  in  the  same  action  already  commenced, 
and  is  an  ancillary  remedy  and   collateral  to  such  action. 
Toms  v.  Warson,  66  N.  C.  E.  417. 

24.  Hence,  a  stranger  to  the  action  in  aid  of  which  the 
attachment  is  issued,  has  no  right  to  intervene,  and  make 
himself  a  party  thereto,  though,  upon  proof  of  interest  in  the 
property  attached,  he  may  be  allowed  to  make  up  a  collat- 
eral issue  of  title.     Ibid. 

25.  A  levy  on  land,  under  an  attachment  issued  by  a 
Justice  of  the  Peace,  is  sufficient,  if  it  gives  such  a  descrip- 
tion as  will  distinguish  and  indemnify  the  land.  Grier  v. 
Bhyne,  67  N.  C.  E.  338. 


ATTACHMENT— I.— II.  39 

26.  Therefore,  a  levy  in  tbese  words  :  "  I  did,  on  the  12th 
day  of  June,  1859,  levy  on  a  certain  tract,  whereon  defendant 
lives,  containing  197  acres;  also  another  tract  lying  near 
the  same,  70  acres  more  or  less — no  personal  property,  &c, 
to  be  found  ;"  was  held,  to  be  sufficient.     Ibid. 

27.  A  judgment  of  the  Superior  Court,  upon  a  Justice's 
execution  or  attachment  levied  on  laud,  under  which  judg- 
ment there  was  an  execution  and  sale  of  the  land,  precludes 
all  collateral  enquiry  into  the  regularity  of  the  previous 
proceedings.     Ibid. 

28.  Where  a  motion  to  discharge  a  warrant  of  attach- 
ment had  been  made  in  the  Superior  Court,  and  the  motion 
allowed,  and  the  plaintiff  appealed  to  the  Supreme  Court 
and  that  Court  had  reversed  the  order,  and  upon  the  opiuion 
being  certified  to  the  Superior  Court,  for  further  proceedings, 
and  the  case  being  called,  his  Honor  heard  affidavits  of  facts, 
alleged  to  have  existed  at  time  of  first  decision,  and  gave 
judgment  discharging  the  warrant:  Held,  to  be  erroneous, 
and  that  the  decision  first  made  was  final,  at  least  as  to  fact 
existing  at  the  time  of  that  decision.  Broivn,  Daniel  &  Co. 
v.  Hawkins,  08  N.  C.  R.  444. 

29.  An  affidavit  for  a  warrant  of  attachment,  under  the 
C.  C.  P.,  sec.  201,  (Battle's  Kevisal  chap.  67,  sec.  201,)  which 
states  that  "  the  defendant  is  absent  so  that  the  ordinary 
process  of  law  cannot  be  served  upon  him,"  without  an 
averment  that  the  absence  "  was  with  intent  to  defraud  his 
creditors  and  to  avoid  the  service  of  a  summons,"  is  fatally 
defective.     Love  Sc  Co.  v.  Young,  69  K.  C.  11.  65. 

See  (Arrest — 1,  2,  3,  6.) 

II.     GARNISHEE  SUMMONED. 

1.  Where  an  original  attachment  issued,  and  a  summons 
ot  garnishment  is  served  upon  a  party,  who  dies  before  the 
return  day  of  process,  his  administrators  cannot  be  required 
to  answer  said  garnishment.  In  such  a  proceeding,  the  gar- 
nishee is  required  to  answer  upon  oatii  '•  lielher  be  is  indebted 
to  the  absconding  debtor,  and  it  so.  how  ii,nolJ  This  being 
peculiarly  within  his  own  knowledge,  the,  action  cannot  be 
prosecuted  against  his  representatives.  Tate  v.  Morchead, 
65  N.  C.  R.  681. 

2.  History  of  the  common  law  and  of  the  enactments  in 
this  State,  by  which  actions  might  be  revived  and  carried 
on  by,  or  against,  the  representatives  of  a  deceased  party — 
and  in  what  cases  the  maxim  actio  personalis  moritur  cum 
persona  does  not  apply,     J  bid. 


40  ATTACHMENT— II.— III.— IV. 

3.  Where,  an  attachment  against  the  payee  of  a  negotia- 
ble note,  the  maker  is  summoned  as  garnishee  and  admits 
his  indebtedness  to  the  payee,  and  thereupon  a  judgment  is- 
given  against  him  for  the  amount,  it  will  be  no  defence  to 
such  maker  when  sued  upon  the  note  by  one  who  became  a 
honafide  endorsee  before  he  was  summoned  as  a  garnishee  in 
the  attachment,  even  though  such  endorsement  was  made 
after  the  note  was  over  due.  Shuler  v.  Bryson,  65  1ST.  0.  R. 
201. 

4.  When  one  is  summoned  as  a  garnishee  in  an  attach- 
ment, and  owes  a  note  which  is  negotiable,  he  has  a  right  to 
insist  upon  the  production  and  surrender  of  the  note,  or  upon 
an  indemnity  as  in  the  case  of  a  lost  note,  before  a  judgment 
is  taken  against  him  upon  his  garnishment.     I  hid. 

III.     JUDICIAL   ATTACHMENT. 

1.  A  court  has  no  power  to  grant  a  judicial  attachment 
after  a  return  of  "  not  found "  made  upon  a  writ  issued 
against  a  non-resident:  and  where  under  these  circumstances 
such  a  writ  had  been  taken  out,  held  that  it  was  the  duty  of 
the  court  to  dismiss  it  on  motion  made  by  or  for  the  defend- 
ant, or  even  ex  mero  motu.     Denver  v.  Keith,  Phil.  L.  R.  428* 

IV.     IN  EQUITY. 

1.  A  bill  seeking  an  attachment  on  account  of  a  single 
claim,  is  not  multifarious  because  it  prays  that  such  attach- 
ment issue  against  property  in  the  hands  of  various  persons, 
or  because  it  seeks  from  such  persons  an  account  of  their 
respective  dealings  with  the  debtor.  Alexander  v.  Taylor, 
Phil.  Eq.  R.  36. 

2.  Where,  in  such  a  bill,  process  (but  not  relief)  had  also 
been  prayed  for  against  the  executors  of  the  surety  to  the 
debt,  and  a  judgment  fro  confesso  had  been  taken  against 
them :  Held,  that  although  the  bill  would  have  been  dis- 
missed as  to  them  if  they  had  demurred,  no  other  defendants, 
could  complain  of  their  misjoinder.     1  hid. 

3.  The  debtor  in  an  attachment  suit  in  equity  has  no 
status  in  court  until  he  has  appeared  and  replevied,  in  accord- 
ance with  the  25th  section  of  Rev.  Code,  ch.  7.     Ihid. 

4.  An  attachment  in  equity  will  lie  against  the  principal, 
even  though  the  remedy  at  law  against  his  surety  has  not 
been  exhausted.     Ihid. 


ATTACHMENT— Y— ATTORNEY  AT  LAW.    41 

V.     UNDER  THE  LIENS  OF  LABORERS  AND  OTHERS. 

1.  Upcler  sec.  14,  cb.  117,  of  the  acts  of  1868-'69,  giving 
a  remedy  by  attachment  to  enforce  a  laborer's  lien  in  certain 
cases,  an  affidavit  that  the  defendant  has  removed  and  is 
removing  and  disposing  of  Ms  cotton  crop  without  regard  to 
the  lien,  is  sufficient  to  justify  the  issuing  of  the  warrant. 
Brogden  v.  Privet,  67  N.  C.  R.  45. 


ATTORNEY  AT  LAW. 

1.  After  an  attorney  has  been  admitted  by  the  court  to 
represent  a  party,  he  cannot  unless  with  the  consent  of  the 
court  be  discharged  before  the  end  of  the  suit.  Walton  v. 
Sugg,  Phil.  L.  R.  98. 

2.  A  suit  does  not  end  before  complete  satisfaction  of,  or 
discharge  from,  the  judgment  given  therein.     Ibid. 

3.  Where  persons  mutually  contested  the  claims  of  each 
other  to  be  regarded  as  Mayor,  &c,  of  a  municipal  corpora- 
tion, and  one  party  had  brought  an  action  in  the  name  of  the 
corporation,  in  order  to  test  the  question:  Held,  that  upon 
the  case  coming  by  appeal  to  this  Court,  an  attorney,  claim- 
ing to  be  counsel  for  the  plaintiff  and  authorized  under  its 
seal,  although  perhaps  appointed  by  the  other  party,  had  a 
right,  even  against  the  protest  of  the  attorney  who  brought 
the  action  and  had  been  recognized  up  to  that  time  as  the 
attorney  upon  record  although  without  authority  under  seal, 
to  have  the  action  dismissed.  Newberne  v.  Jones,  63  N.  C. 
R.  606. 

4.  The  power  of  attorney  which  a  lawyer  may  be  required 
to  file,  by  Rev.  Code,  ch.  31,  s.  37,  is  some  writing  addressed 
to  him  by  the  client  or  an  agent  for  the  client;  therefore,  let- 
ters written  by  the  client  to  third  persons  in  which  no  parti- 
cular suit  is  specified,  which  express  gratification  that  a  cer- 
tain gentleman  had  been  employed  in  some  controversy  be- 
tween the  plaintiff  and  the  present  defendant,  will  not  supply 
the  want  of  such  a  power.     Day  v.  Adams,  63  N.  0.  R.  254. 

5.  Whether  one  who  has  assumed  to  act  as  attorney  for 
another,  was  authorized  to  do  so,  is,  under  proper  instructions 
from  the  Court,  a  question  of  fact  for  the  jury.  Alspaugh  v. 
Jones,  64  N.  C.  R.  2!». 

6.  Where  a  party  filled  up  a  writ  for  himself  in  his  char- 
acter as  guardian,  as  plaintiff,  and  handed  it  to  an  ollicer  to 


42  ATTORNEY  AT  LAW. 

be  served,  but,  before  it  was  executed,  procured  auotber  per- 
son to  be  substituted  in  bis  place  as  guardian,  and  endorsed 
tbe  note  in  question  to  hiui:  Held,  tbat  an  attorney,  wbo 
usually  bad  taken  judgments  for  tbe  former  guardian,  and  for 
tbat  reason,  after  tbe  writ  bad  been  executed,  and  before  it 
bad  been  returned  (July  1862,)  instructed  the  Sheriff  to  re- 
ceive Confederate  and  other  currency  inpayment  of  the  amount 
specified  upon  its  face,  was  not  authorized  so  to  do.     1  bid. 

7.  A  uote  given  by  an  executor  to  an  attorney  for  coun- 
sel in  bis  office  as  executor,  is  payable  by  tbe  maker  person- 
ally, and  not  as  executor.     Kesler  v.  Hall,  64  N.  0.  R.  60. 

8.  Parol  evidence  of  an  understanding  tbat  it  was  to  be 
paid  out  of  the  testator's  assets  only,  is  not  admissible. 
Ibid. 

9.  A  motion  to  strike  out  tbe  name  of  a  plaintiff,  made 
by  tbe  attorney  for  the  defendant,  by  virtue  of  a  power  of 
attorney  to  tbat  end,  given  by  one  of  tbe  plaintiffs,  will  be 
refused  where  the  attorney  for  such  plaintiff  produces  a 
letter  from  him  of  a  date  later  than  that  of  the  power, 
authorizing  the  suit  to  go  on.  Petteway  v.  Daivson,  64 
N.  0.  R.  450. 

10.  Tbe  Act  of  Apn'l,  1871,  declaring  tbat  no  attorney 
shall  be  disbarred,  until  he  may  be  convicted  of,  or  confess  in 
open  court,  some  criminal  offence,  showing  him  to  be  unfit  to 
be  trusted  iu  the  duties  of  his  profession,  is  constitutional: 
Therefore,  the  action  of  a  Judge  who  acted  in  disregard  of 
the  provisions  of  this  Act,  was  void.  Ex-parte  Schencli,  65 
K  0.  R.  354. 

11.  An  attorney  cannot  compromise  his  client's  case 
without  special  authority  to  do  so,  nor  can  he  without  such 
authority,  receive  in  payment  of  a  debt  due  his  client  any- 
thing except  the  legal  currency  of  the  country,  or  bills  which 
pass  as  money  at  their  par  value  by  the  common  consent  of 
the  community.  A  subsequent  ratification  of  the  acts  of  the 
attorney  is  equivalent  to  a  special  authority  previously  gran- 
ted to  do  those  acts,  but  it  must  be  the  ratification  of  the 
client  himself  and  not  of  his  agent.  Moye  v.  Cogdell,  60 
N.  0.  R.  93. 

12.  Tbe  alleged  fraudulent  conduct  of  a  defendant  and  an 
attorney  employed  by  the  plaintiff,  cannot  be  inquired  into 
upon  a  writ  of  false  judgment.  Caldwell  v.  Beatty,  69 
N.  0.  R.  365. 

See  (Contempt  3,  6,  10,  13,  14,  15,  18,  19,  20,  25,  28,  29, 
30,  32,  33,  34,  35.) 


AUDITOR  OF  THE  STATE.— BAIL.  43 


AUDITOR  OF  THE  STATE. 

1.  The  Auditor  of  the  State  is  not  a  mere  ministerial 
officer.  When  a  claim  is  presented  to  him  against  the  State, 
he  is  to  decide  whether  there  is  a  sufficient  provision  of  law 
for  its  payment,  and  if  in  his  opinion  there  is  not  sufficient 
provision  of  law,  he  must  examine  the  claim  and  report  the 
fact,  with  his  opinion,  to  the  General  Assembly.  Bonner  v. 
Adams,  05  N.  0.  K.  C37. 

2.  Therefore,  where  a  Clerk  of  the  General  Assembly  had 
received  a  warrant  for  the  entire  number  of  days  to  which  he 
was  entitled,  at  seven  dollars  per  day,  he  had  no  right  to  a 
writ  of  mandamus  against  the  Auditor  of  the  State  because 
he  refused  to  give  him  a  warrant  for  three  dollars  per  day 
additional  for  the  same  number  of  days  for  which  he  had 
heretofore  obtained  a  warrant.     Ibid. 

3.  The  mode  of  proceeding  against  the  Auditor  of  the 
State,  who  refuses  to  issue  a  warrant,  discussed  and  ex- 
plained.   Ibid. 


BAIL. 


1.  An  administrator  is  not  responsible  for  the  sufficiency 
of  a  bail  bond  taken  by  a  sheriff  in  a  case  wherein  he  is 
plaintiff, — even  although  he  expressly  accepted  such  bond. 
State,  &c,  v.  Sloan,  04^.  0.  R.  702. 

2.  Where  the  bail  taken  was  a  non-resident,  and  after 
judgment  against  the  principal  had  been  rendered,  and  writs 
of  ca.  sa.  issued  and  returned  not  to  be  found,  writs  of  scire 
facias  were  issued  against  the  bail,  and,  after  two  nihils, 
judgment  was  rendered  against  the  latter:  Held,  that  the 
administrator  was  not  bound  to  attempt  to  collect  such 
judgment  in  another  State.     Ibid. 

'•>.  Inasmuch  as  there  was  no  personal  service  of  the  writs 
of  scire  facias  in  the  action  against  the  bail,  the  judgment 
therein  could  not  have  been  enforced  in  another  State.     Ibid. 

See  (Attachment — Original  and  under  the  0.  C.  P.  1.) 


44  BAILMENT. 


BAILMENT. 

1.  The  rule  that  possession  is  prima  facie  evidence  of 
property  has  no  application  to  a  case  where  bailment  is  ad- 
mitted.    Lutz  v.  Yoiint,  Phil.  L.  R.  367. 

2.  If  a  horse  be  hired,  or  borrowed,  to  be  ridden  to  a 
particular  place  and  returned  at  a  particular  time,  if  he  be 
ridden  to  another  place  and  kept  beyond  the  time,  the  bailee 
is  responsible  for  any  injury  to  the  horse  which  results  from 
his  departure  from  the  contract,  without  regard  to  any  ques- 
tion of  negligence.     Martin  v.  Cuthbertson,  64  1ST.  0.  R.  328. 

3.  In  cases  of  bailment,  the  owner  of  the  property  has  no 
right  of  action  against  the  bailee  until  the  termination  of  the 
bailment ;  but,  after  the  termination  of  the  bailment,  the 
owner  can  recover  without  a  demand  for  possession.  Felton 
v.  Hales,  67  N.  0.  R.  107. 

4.  When  a  bailee  denies  the  title  of  the  owner,  and  sets 
up  title  in  himself,  no  demand  is  necessary ;  and  the  defend- 
ant is  precluded  from  objecting  the  want  of  demand,  where, 
in  his  answer,  he  alleges  property  in  himself.     Ibid. 

5.  When  a  bailment  is  for  the  benefit  of  bailee  only,  he 
is  bound  to  take  extraordinary  care,  but  when  it  is  for  the 
benefit  of  bailor  only,  the  bailee  is  only  liable  for  gross 
neglect,  crassa  negligentia.  McCombs  v.  N.  C.  JR.  B.  Co., 
67  N.  0.  R.  193. 

6.  Where  a  horse  was  placed  by  A,  in  the  possession  of 
P,  with  au  understanding  that  he  was  to  work  for  his  food, 
and  was  to  do  the  plowing  and  milling  for  A,  and  A  was  to 
use  the  horse  when  he  wanted  him  :  held,  that  this  is  a  con- 
tract of  bailment,  and  is  governed  by  the  general  principle, 
that  a  bailee  cannot  dispute  the  title  of  his  bailor.  Maxwell 
Houston,  N.  0.  R.  305. 

7.  When  an  administrator  converts  property,  he  is  a 
wrong  doer,  although  he  obtained  possession  by  an  act  of 
law ;  and  he  cannot  be  heard  to  dispute  the  title  of  the  bailor 
of  his  intestate.     Ibid. 

8.  A  bailee,  where  the  bailment  is  for  the  benefit  of  both 
parties,  is  only  liable  for  ordinary  neglect ;  and  this  does  not 
embrace  a  case  of  accidental  destruction  by  fire  without 
default  on  the  part  of  the  bailee.  Henderson  v.  Bessent,  68- 
N".  0.  R.  223. 

See  (Banks  and  Bank  Notes  9.) 


BANKRUPTCY.  45 


BANKRUPTCY. 

1.  Where  the  plaintiff  in  a  suit  upon  an  account,  assigned 
bis  interest  therein  bona  fide  and  for  value  :  held,  that  he 
thereby  became  a  trustee  of  such  claim  for  the  assignee,  and 
that  his  subsequently  becoming  bankrupt,  during  the  pend- 
ency of  the  suit,  did  not  affect  his  rights  to  recover  as  trus- 
tee.    Yallentine  v.  Holloman,  63  IS".  0.  R.  475. 

2.  A  brings  an  action  of  replevin  for  the  recovery  of  an 
ox;  during  the  pendency  of  the  suit  he  is  adjudged  a  bank- 
rupt upon  his  own  petition,  and  the  ox  is  allotted  to  him  as 
a  part  of  his  exemptions  under  the  bankrupt  law:  held,  that 
the  legal  title  to  the  ox  remained  in  A,  and  that  it  had  never 
vested  in  the  assignee.     Scott  v.  Wilkie,  05  N.  0.  R.  370. 

3.  Although  a  tenant  cannot  dispute  the  title  of  his  land- 
lord, yet,  in  an  action  for  the  recovery  of  reality  by  an 
assignee  in  bankruptcy  against  the  tenant  of  the  bankrupt, 
Jbe  may  dispute  the  assignment.  Steadman  v.  Jones,  65 
K.  C.  R.  388. 

4  The  defendant,  a  corporation,  created  by  the  laws  of 
the  State  of  Rhode  Island,  did  business  in  this  State,  and 
owned  property  here.  Within  six  weeks  after  a  warrant  of 
attachment  had  been  executed  on  the  estate  of  defendant, 
situate  in  this  State,  it  was  declared  a  bankrupt  on  its  owu 
petition  by  the  District  Court  of  the  United  States  for  the 
District  of  Rhode  Island,  and  a  deed  of  assignment  of  all  the 
estate  of  defendant  was  made  to  the  assignee :  Held,  (1.)  that 
the  warrant  of  attachment,  although  executed  on  the  estate 
of  defendant  is  but  mesne  process.  (2,)  That  the  effect  of 
the  appointment  of  the  assignee  was  to  vest  the  entire  estate 
of  the  defendant  in  such  assignee,  and  that  the  order  for  the 
dissolution  of  the  warrant  of  attachment,  and  the  restitution 
of  the  estate  of  defendant  to  the  assignee,  was  proper. 
Mixer,  Whitemore  &  Co.  v  Excelsior  0.  &  G.  Co.,  65 
N.  C  R  552. 

5.  To  a  bill  for  a  specific  performance  of  a  contract  to 
convey  land,  the  assignee  of  the  vendor,  who  has  not  received 
the  whole  of  the  purchase  money,  and  who  has  become  bank- 
rupt, must  be  made  a  party.  Stvepson  v.  Rouse,  05  X.  0.  R. 
34 

6.  Where  a  defendant  to  a  bill  for  the  specific  performance 
of  a  contract  to  convey  land,  alleges  and  relies  upon  his 
certificate  of  discharge  as  a  bankrupt,  the  fact  of  a  proper 
assignment  of  his  estate  to  his  assignee  will  be  presumed, 


46  BANKRUPTCY. 

though  it  is  not  specifically  alleged  where  there  is  no  allega- 
tion or  proof  to  the  contrary.     I  hid. 

7.  The  District  Courts  of  the  United  States  have  general 
original  jurisdiction  in  all  matters  appertaining  to  the  estate 
of  a  baukrupt ;  and  they  may  exercise  extra  territorial  juris- 
diction, in  collecting  the  estate  and  adjusting  the  claims  of 
the  creditors  of  the  bankrupt,  when  the  Court  of  Bankruptcy 
can  fairly  and  fully  determine  the  rights  of  the  parties  inter- 
ested.    Whitridge  v.  Taylor,  66  N.  0.  R.  273. 

8.  In  all  matters  of  controversy,  when  the  subjects  in  dis- 
pute are  of  a  local  character,  the  rights  of  the  parties  must 
be  determined  in  the  local  Courts.     Ibid. 

9.  When  a  mortgagee,  by  the  terms  of  the  mortgage,  has 
a  right  to  foreclose,  when  an  adjudication  in  bankruptcy  is 
made,  this  right  cannot  be  administered  by  a  District  Caurt, 
sitting  as  a  Court  of  Bankruptcy  in  another  State.  The 
State  Courts  can  afford  a  remedy  by  foreclosure  or  sale,  and 
at  the  same  time  allow  the  assignee  to  have  the  full  benefit 
of  the  equity  of  redemption.     Ibid. 

10.  When  an  execution  for  costs,  incurred  in  this  Court, 
has  been  returned  unsatisfied,  and  the  party  is  insolvent  and 
entitled  to  moneys,  in  the  Clerk's  office  of  this  Court,  this 
Court  will  order,  that  the  office  costs  be  deducted  from  the 
moneys  so  due  to  him;  aud  although  such  execution-debtor 
is  adjudicated  a  bankrupt,  it  will  not  affect  this  conclusion, 
as  the  assignee  quoad  hoc  takes  subject  to  all  the  equities  of 
the  bankrupt.  Cleric's  Office  v.  Bank  of  Cape  Fear,  Giy  N- 
C.  K.294. 

11.  rJ  he  position  and  legal  status  of  an  assignee,  discussed 
and  explained  by  Rodman,  J.     Ibid. 

12.  Where  a  debtor,  after  filing  his  petition  in  bank- 
ruptcy, but  before  obtaining  his  discharge,  promises,  in  con- 
sideration of  the  old  debt,  and  of  a  new  credit  for  the  purchase 
of  goods,  to  pay  the  old  debt  as  well  as  the  new,  his  subse- 
quent discharge  is  no  defence  against  his  promise  to  pay  such 
old  debt      Homthal  v.  McRae,  67  N.  C  R.  21. 

13.  Where,  in  an  action  upon  a  bond,  the  defendant 
pleaded  his  discharge  in  bankruptcy,  and  the  plaintiff  replied, 
alleging  promises  to  pay  after  tl  e  adjudication  of  bankruptcy: 
Held,  that  evidence  of  a  promise  made  after  the  adjudication, 
but  before  the  discharge,  was  admissible.  Fraley  v  Kettey, 
78. 

14.  Under  our  present  system  of  practice,  though  it  is 
regular,  where  suit  is  brought  to  recover  a  debt  which  would 
be  barred  by  bankruptcy  but  for  a  subsequent  promise  to 


BANKRUPTCY.  47 

pay,  to  set  forth  the  new  promise  in  the  reply  to  an  answer 
alleging  bankruptcy.     1  bid. 

1  5.  In  case  of  a  debt  barred  by  a  certificate  of  bankruptcy, 
nothing  less  than  a  distinct,  unequivocal  promise  to  pay,  on 
the  part  of  the  defendant,  notwithstanding  his  discharge,  will 
support  an  action  upon  the  new  promise.     Ibid. 

16.  A  suretjr,  on  the  official  bond  of  a  defaulting  constable, 
is  entitled  to  the  benefit  of  a  discharge  under  tbe  bankrupt 
law,  from  the  liabilities  of  the  bond  consequent  upon  the 
constable's  default.     McMinn  v.  Allen,  67  N.  0.  R.  131. 

17.  The  jurisdiction  of  a  bankrupt  court  being  conceded, 
its  adjudication  of  bankruptcy  is  a  judgment  in  rem  fixing 

#  the  status  of  the  bankrupt  which  upon  that  point  is  binding 
upon  all  the  world,  and  can  only  be  impeached  for  fraud  in 
obtaining  it.     Leivis  v.  Sloan,  68  N.  0.  R.  557. 

18.  Prior  to  the  bankrupt  law,  it  was  held  in  North 
Carolina  that  an  insolvent  had  a  right  to  prefer  one  or  several 
among  his  creditors,  although  the  effect  was  to  hinder  and 
delay  others.  This  right  of  preference  is  taken  away  by  that 
act,  and  the  State  courts  are  bound  to  hold  that  fraudulent 
and  void,  which  the  act  declares  to  be  so  under  the  condi- 
tions which  it  prescribes.  Every  court,  however,  in  which  a 
controversy  as  to  the  title  to  the  property  alleged  to  have 
been  fraudulently  conveyed,  may  arise,  has  jurisdiction  to 
inquire  whether  the  conveyance  was  iu  fact  and  in  law 
fraudulent,  L  e  whether  the  conditions  prescribed  by  the  act 
to  make  it  fraudulent,  existed.     Ibid. 

19.  An  assignee  in  bankruptcy  may  sue  or  be  sued  in 
courts  of  the  State,  on  claims  for  or  against  the  estate  of  the 
bankrupt,  our  courts  having  concurrent  jurisdiction  of  the 
United  States  Courts,  in  the  premises.  Cogdell  v  JEzum,  60 
N.  0.  R.  464. 

20.  A,  a  bankrupt,  brings  a  suit  in  his  own  name  against 
B,  on  the  10th  day  of  September,  1870;  on  the  llth  of 
March,  1872,  A's  assignee  in  bankruptcy,  C,  who  was  ap- 
pointed the  25th  of  February,  1860,  is  made  party  plaintiff 
in  the  suit  commenced  by  A:  held,  That  the  right  of  action 
against  B  accrued  to  C,  the  assignee,  at  the  time  of  Irs 
appointment,  and  that  he  was  barred  by  the  limitation  con- 
tained in  section  2,  of  the  bankrupt  act.     Ibid. 

See  (Costs  14,)  (Trusts  and  Trustees  22.; 


48  BANKS  AND  BANK  NOTES. 


BANKS   AND   BANK   NOTES. 

1.  A  cause  of  action  on  bank  bills  does  not  accrue  until  a 
demand  and  refusal ;  and  such  bills  bear  interest  only  from 
the  time  of  demand  and  refusal.  Crawford  v.  Bank  of  Wil- 
mington, Phil.  L.  R.  136. 

2.  A  bank  which  in  1860  gave  to  a  depositor  a  certificate 
setting  forth  that  he  had  deposited  a  certain  sum  "in  cur- 
rent notes  of  the  different  banks  oi  the  State,"'  and  the  sum 
deposited  is  "  payable  in  like  current  notes  to  the  depositor 
or  to  his  order  on  return  of  the  certificate,"  is  liable  for  tie 
whole  amount,  with  interest  from  date  of  the  demand,  i% 
in  currency  of  the  United  States.  Fort  v.  Bank  of  Cape 
Fear,  Phil.  L.  R.  417. 

3.  "  Seventy-one  dollars  in  current  bank  money,"  in  a 
bond  promising  to  pay  that  amount,  held  to  mean  current 
bank  bills  calling  on  their  face  for  seventy-one  dollars. 
Lackey  v  Miller,  Phil.  L.  R   26. 

4.  By  Peason,  C.  J ,  arguendo,  such  a  bond  is  not  nego- 
tiable; and,  after  the  day  of  payment  is  past,  the  proper 
remedy  upon  it  is  covenant,  in  which  case  the  measure  of 
damages  would  be  the  value  at  the  time  the  bond  became 
due  of  that  amount  of  bank  bills,  in  United  States  coin. 
Ibid. 

5.  The  ordinary  relation  subsisting  at  com  mon  law  between 
a  bank  and  its  customers  on  a  general  deposit  account  is  sim- 
ply that  of  debtor  and  creditor.  A  deposit;  by  a  customer, 
in  the  absence  of  any  special  agreement  to  the  contrary,  cre- 
ates a  debt,  and  the  payment  by  the  bank  of  the  customer's 
checks,  discharges  such  debt  pro  tanto.  The  bank  or  the 
customer  may  at  any  time  discontinue  their  dealings,  and  the 
balance  of  the  account  between  them  can  be  easily  ascer- 
tained by  a  simple  calculation.  Boyden  v.  Bank  Cape  Fear , 
65  N.  Ol  R.  13. 

6.  The  general  rule  in  adjusting  a  running  account 
between  a  bank  and  its  customer  is,  "the  first  money  paid 
in,  is  the  first  money  paid  out."  The  first  item  on  the  debit 
side  is  discharged  or  reduced  by  the  first  item  on  the  credit 
side.  But  this  rule  is  not  strictly  applicable  to  a  case  where 
the  account  commenced  before  the  late  civil  war,  and  was 
contiuued  during  it,  as  that  part  of  the'  account  which  was  in 
Confederate  curreucy  is  not  to  be  governed  by  the  principles, 
of  the  common  law,  but  by  the  ordinance  of  the  18th  October, 
1865,  and  the  acts  of  1866,  chs  38  and  39.     The  account 


BANKS  AND  BANK  NOTES.  49 

must  be  divided,  and  the  amount  due  October  1st,  1861,  must 
be  estimated  in  par  funds.  To  give  full  effect  to  the  pay- 
ments of  the  bank,  and  allow  to  the  plaintiff  the  proper  value 
of  his  deposits,  each  payment  ought  to  be  deducted  from  the 
next  preceding  deposit  or  deposits,  and  when  the  deposits 
.are  in  excess  of  the  payments,  a  balance  ought  to  be  struck, 
-and  the  value  of  such  excess  ought  to  be  ascertained  accord- 
ing to  the  scale,  and  form  a  part  of  the  general  balance  due 
the  plaintiff.  In  this  way  the  nominal  amount  of  the  pay- 
ments will  be  deducted  from  the  nominal  amount  of  the 
preceding  deposits.  The  value  of  the  excess  of  the  various 
deposits  at  the  time  they  were  made  with  the  premium 
added,  will  constitute  the  true  balance  in  the  Confederate 
currency  transactions;  and  this  sum  added  to  the  amount  of 
the  par  funds  due  October  1st,  1861,  will  constitute  the 
amount  due  the  plaintiff  at  the  time  of  the  demand  made. 
Ibid 

7.  Where  a  bank,  during  the  late  civil  war,  adopted  a 
new  usage  and  custom  with  its  customers,  with  regard  to 
their  deposits  in  Confederate  currency,  proof  of  it  cinnot  be 
admitted  to  affect  one  who  had  been  a  regular  customer 
before  the  war,  and  continued  such  during  the  war,  unless  it 
be  shown  that  he  had  notice  of  the  change  in  the  ordinary 
usage  and  custom  of  the  bank  as  to  general  deposits.     Ibid. 

8.  The  fact  that  a  regular  customer  sometimes  made 
special  deposits  of  bank  bills  with  a  bank,  has  no  tendency 
to  show  that  he  had  notice  of  change  in  the  ordinary  usage 
and  custom  of  the  bank  as  to  general  deposits,  for  a  special 
deposit  constitutes  a  contract  essentially  different  from  that 
which  arises  by  implication  of  law  from  a  general  deposit. 
Ibid. 

9.  A  special  deposit  is  a  naked  bailment,  and  on  demand 
of  the  bailor,  restitution  must  be  made  of  the  thing  deposited, 
and  as  the  bank  acquires  no  property  in  the  thing  deposited, 
and  derives  no  benefit  therefrom,  it  is  only  bound  to  keep 
the  deposit  with  the  same  care  that  it  keeps  its  own  property 
of  a  like  description.     Ibid. 

10.  The  proper  mode  of  obtaining  relief  under  the  act  of 
1S6<S-'6D,  which  makes  bank  bills  a  set-oft  against  judgments 
and  executions  already  obtained,  is  by  a  rule  upon  the  plain- 
tiff in  the  judgment  or  execution,  which  is  sought  to  be 
enjoined,  founded  upon  proper  affidavits,  requiring  him  to 
show  cause  why  he  shall  not  accept  the  bills  of  the  bank  in 
payment  of  the  debt,  and  have,  satisfaction  of  the  judgment 
entered  of  record.     And  a  notice  of  the  rule  served  upon  the 

4 


50  BANKS  AND  BANK  NOTES. 

sheriff,  who  has  the  execution  in  hand,  will  operate  as  a 
supersedias.     Mann  v.  Blount,  G5  N.  C.  I£  99. 

11.  It  is  the  rule  of  a  Court  of  Equity,  or  of  any  other 
Court,  which  proceeds  upon  the  same  principles,  not  to  enter- 
tain a  bill  or  action,  which  seeks  no  other  relief  than  that 
which  can  be  had  by  orders  in  a  cause  then  pending.     Ibid. 

12.  The  dissolution  of  a  banking  corporation,  with  no  pro- 
vision of  law  for  collecting  its  debts,  deprives  it  of  the  power 
to  do  so;  but  it  was  held,  that  an  act  of  the  Legislature  of 
South  Carolina,  passed  since  the  war  to  enable  its  banks  to 
renew  their  business,  or  to  place  them  in  liquidation  ;  and  a 
decree  of  a  court  in  that  State  declaring  a  certain  bank  to  be 
insolvent,  and  putting  it  in  liquidation,  did  not  dissolve  the 
corporation,  but  continued  its  existence  for  the  purpose  of 
collecting  its  debts  and  winding  up  its  affairs.  Bank  of 
Columbia  v.  Tiddy,  07  N.  C.  R.  1G9. 

13.  The  act  of  18G9-'70,  ch.  4,  which  authorizes  the  defen- 
dants in  judgments  obtained  by  banks  chartered  by  this 
State  upon  a  note  given  to,  or  a  contract  made  with,  a  bank 
or  its  officers,  to  pay  and  satisfy  the  same  with  the  bills  of 
such  bank,  is  constitutional,  and  construed  with  the  act  of 
1808,  ch.  17,  and  1808-'09,  ch.  77,  in  pari  materia,  applies  as 
well  to  foreign  as  to  domestic  banks.     Ibid. 

14.  The  act  of  1809-'70,  requiring  bank  bills  to  be  received 
in  payment  of  judgments,  rendered  in  favor  of  banks  char- 
tered prior  to  May  1st,  1805,  is  constitutional.  The  statute 
is  merely  an  extension  of  the  principles  upon  which  the  stat- 
ute of  set-off  is  based,  and  adjusting  the  balances  according  to 
equitable  principles,  interest  on  the  bank  bills,  tendered  in 
payment,  should  be  allowed  from  the  date  of  the  demand  and 
protest.     Bank  of  Charlotte  v.  Hart,  07  N.  C.  R.  204. 

15.  A  bank  cannot,  by  assignment  of  its  effects,  choses 
in  action,  &c,  deprive  a  maker  of  a  note  due  the  bank  of 
his  right  to  pay  the  same  with  the  bills  of  the  bank ;  nor  can 
the  bank,  by  any  authority  derived  from  the  Legielature, 
deprive  the  maker  ot  such  right  of  payment  of  a  note  due  the 
bank  in  bills  of  the  bank.     Blount  v.  Windley,  08  N.  C.  R.  1. 

10.  If  upon  confessing  judgment  in  a  suit  by  a  bank 
against  one  of  its  debtors,  it  be  agreed  and  entered  upon  the 
docket  at  the  foot  of  the  judgment,  that  it  may  be  discharged 
upon  the  payment  of  a  certain  per  cent,  of  the  amount  in 
United  States  currency,  or  the  full  amount  in  the  notes  of 
the  bank,  the  plaintiff  will  be  bound  by  the  agreement,  and 
an  execution  issued  for  the  full  amount  in  United  States  cur- 
rency more  than  two  years  afterwards,  may  be  set  aside,  and 


BANKS  AND  BANK  NOTES —BASTARDY.     51 

the  bankruptcy  of  the  hank  will  not  alter  the  ease.  Hardy  v. 
Reynolds,  69  N.  0.  R.  5. 

1<>.  The  assignee  of  non-negotiable  or  dishonored  notes, 
(such  as  bank-bills  protested  for  non-payment,)  takes  them 
subject  to  all  equities  against  his  assignor,  whether  he  knows 
of  them  or  not.  Burroughs  v.  Bank  of  Charlotte,  70  N.  0. 
R.  283. 

17.  In  a  suit  between  two  banks  for  the  recovery  of  819,- 
331,  it  is  agreed  by  the  debtor  bank  to  pay  one-half  of  said 
debt  and  interest  in  cash,  and  to  satisfy,  pay  and  discharge 
the  balance  by  paying  over  t©  the  other  50  per  cent,  of  its 
assets  as  they  are  collected,  and  as  may  be  sufficient  there- 
for, the  creditor  bank  agreeing  to  accept  such  payment  and 
agreement  as  to  the  remainder,  in  "full  satisfaction,  payment 
and  discharge  of  the  suit  and  of  all  matters  controverted 
therein  or  appurtenant:"  Held,  that  this  agreement  was  in 
effect  an  assignment  of  one  half  the  assets  of  the  debtor  bank, 
as  a  security  for  its  remaining  indebtedness.  Perry  v.  Mer- 
chant's Bank  of Neivbem,  70^N.  0.  R,  309. 

18.  Held,  further.  That  such  assignment  not  being  regis- 
tered, was  void  against  a  creditor'of  the  bank  making  the  as- 
signment; and  that  the  creditor  acquired  a  hen  on  the  choses 
in  action  assigned,  as  soou  as  the  Court  below  condemns  them 
to  his  use.     Ibid 

lee  (Damages,  2.)     (Tender  and  Refusal,  0.) 


t<« 


BASTARDY. 

1.  A  colored  woman,  the  mother  of  a  bastard  child,  has 
such  an  interest  in  proceedings  in  bastardy,  within  the  mean- 
ing of  the  act  of  1800,  c.  40,  s.  9,  as  to  lender  her  a  compe- 
tent witness  against  a  white  man,  whom  she  alleges  to  be  the 
hither.     State  v.  Henderson,  Phil.  L.  R.  229. 

2.  It  is  not  necessary  for  proceedings  in  bastardy  to  show 
affirmatively  that  the  mother  of  the  child  was  a  single  woman. 
State  v.  Allison,  Phil.  L.  R,  346. 

3.  In  case  of  bastardy  the  county  of  the  mother's  "settle- 
ment" and  not  that  of  her  '.'domicil"  is  chargeable  with  the 
maintenance  of  the  child,  and  settlement  is  gained  only  by  a 
continuous  resdieuce  of  twelve  months.  State  v.  Elam,  Tbil. 
L  R,  460. 

4.  Therefore,  where  the  mother,  having  lived  in  Granville 
county  lor  several  years,    removed  to   Franklin  two  or  three 


52  BASTARDY. 

mouths  before  the  birth  of  the  child,  with  a  bona  fide  inten- 
tion of  changing  her  domicil,  the  former  and  not  the  latter 
county,  had  jurisdiction  of  proceedings  to  charge  the  puta- 
tive lather.     1  bid. 

5.  The  rule,  that  words  which,  from  the  context,  it  is 
manifest  have  been  omitted  in  a  deed  or  a  will  may  be  sup- 
plied by  construction,  held,  to  apply  also  in  construing  records. 
Phil.  L.  R.  326  Therefore,  where  a  motion  had  been  made 
by  the  defendant  in  the  county  court  to  quash  certain  pro- 
ceedings in  bastardy,  and  a  counter  motion  by  the  State,  for 
a  continuance ;  and  the  record  proceeded  thus,  "thereupon 
the  court  refused  to  quash,  and  continued  the  case  to  the 
next  Superior  Court  of  Law  to  be  held,  &e-.,  &c,  without 
surety  by  consent:"  held  that  the  record  showed  sufficiently 
that  the  defendant  had  appealed  from  the  decision  upou  the 
motion  to  quash,  and  therefore  the  cause,  upon  being  carried 
up,  was  properly  constituted  in  the  Superior  Court.  State  v. 
Martin,  Phil.  L.  E.  320 

0.  The  obligation  to  give  bond  for  the  maintenance  of  a 
bastard,  under  an  order  of  court,  is  not  a  debt,  within  the 
State  Constitution  (Art.  1,  Sec  10)  abolishing  imprisonment 
for  debt.  Therefore,  a  Court  may  imprison  a  putative  fath- 
er who  refuses  to  give  such  bond.  Such  imprisonment  is  to 
be  effected  now  under  the  act  of  April  10, 1801),  in  regard  to 
contempt.     /State  v.  Falin,  63  N.  C.  R.  471. 

7.  Justices  must  recognize  defendants  in  bastardy  cases 
to  appear  before  the  Superior  Courts.  County  Commission- 
ers have  no  jurisdiction  of  such  cases,  nor  any  judicial  powers 
whatever.     State  v.  Waldrop,  03  1ST.  C.  R.  507. 

8.  A  bastard,  born  in  this  State  of  a  mother  who  has  uot 
resided  in  it  "for  twelve  mouths,"  is  chargeable  for  mainte- 
nance upon  the  County  iu  which  it  is  born.  State  v.  Mc- 
Quaig,  03  N.  C.  R.  550. 

9.  Upon  the  trial  of  issues  in  proceedings  for  bastardy, 
the  defendant  is  a  competent  witness.     State  v.  Mcintosh, 

64  N.  C  R.  007. 

10.  In  bastardy  cases  the  jurisdiction  of  the  justice  to  is- 
sue the  warrant  before  the  birth  of  the  child,  depends  upon 
the  domicil  of  the  mother  at  the  time,  and  not  on  her  legal 
place  of  settlement;  and,  if  the  mother  continues  to  reside  in 
the  same  county  until  the  birth  of  her  child,  making  her 
whole  residence  therein  more  than  twelve  months,  the  full 
jurisdiction  of  the  case  will  be  in  that  county.  State  v.  Hales, 

65  K  C.  R.  244. 

11.  It  is  not  the  sole  purpose  of  the  Act,  relative  to 


BASTARDY.— BILLS  OF  EXCHANGE,  &c.     53 

"Bastard  Children,"  Rev.  Code,  ch.  12,  to  require  the  puta- 
tive father  to  indemnify  the  county,  but  he  is  likewise  to 
maintain  the  child.     State  v.  Beatty,  06  N.  C.  R.  648. 

12.  As  to  past  maintenance,  there  is  no  difference  be- 
tween that  and  future  maintenance,  so  far  as  the  power  of  the 
Court  is  concerned.     Ibid. 

13.  When  a  person  was  charged  with  being  the  father  of 
a  bastard  child,  and  gave  bond  for  his  appearance  at  the  next 
term  of  the  Court,  and,  before  the  term  of  the  Court,  the 
child  died:  Held,  that  it  was  error  in  the  Court  to  discharge 
such  putative  father  upon  payment  of  costs,  and  without  mak- 
ing an  order  requiring  him  to  give  bond.  What  kind  of  or- 
der, should  be  made  in  such  cases,  is  in  the  discretion  of  the 
Court.  The  statute  seems  to  require  some  order  in  every 
case.     Ibid. 

14.  WThere,  in  the  trial  of  an  issue  of  bastardy,  the  moth- 
er of  the  child  was  put  upon  the  stand,  having  the  child  in 
her  arms,  and  the  solicitor  called  the  attention  of  the  jury  to 
the  child's  features,  and  afterwards  in  his  address  to  the  jury 
commented  upon  its  appearance,  &c,  all  without  objection  by 
the  defendant:  Held,  that  objection  to  the  solicitor's  course 
came  too  late  after  verdict ;  and  it  was  not  error  for  the 
Judge  to  charge  that  the  jury  might  take  the  appearance  of 
the  child  into  consideration,  and  give  it  whatever  weight  they 
thought  it  entitled  to.     State  v.  Woodruff,  08  N.  L.  R.  89. 

15.  It  has  long  been  the  practice  in  this  State  in  Bastardy 
cases  to  exhibit  the  child  to  the  jury,  and  this  Court  sees  no 
objection  to  the  practice.     Ibid. 

16.  On  the  trial  of  issue  of  bastardy,  the  impotency  of  the 
putative  father,  if  true  and  proven,  would  be  a  complete  and 
satisfactory  defence;  it  is  therefore  error  in  the  Judge  below 
to  reject  any  competent  evidence,  introduced  tor  the  purpose 
of  proving  that  the  putative  father  was  impotent  at  the  time 
the  child  is  alleged  to  have  been  begotten.  State  v.  Broad- 
way, 09  X.  C  R  411. 


BILLS  OF   EXCHANGE   AND    PROMIS- 
SORY   NOTES. 

1.  A  note  payable  at,  or  one  day  after  date,  is  not  within 
the  principle  which  excepts  from  the  rule  ;is  to  bona  fide 
endorsees  for  value,  such  as  take  notes  that  are  overdue. 
Parker  v.  StaUings,  Phil.  L.  R.  590. 


54  BILLS  OF  EXCHANGE,  &C. 

2.  A  bona  fide  endorsee  for  value  of  a  note  so  payable 
obtains  a  good  title  against  all  previous  parties,  although 
when  endorsed  it  was  overdue,  and  had  been  obtained  by  a 
fraud  upon  some  of  those  parties,  committed  by  one  through 
whom  the  endorsee  claims  title.     Ibid. 

3.  An  endorsement  of  a  note  to  a  deceased  person,  (made 
with  intent  to  invest  such  person's  personal  representative 
with  the  legal  property  therein)  is  a  nullity.  Valentine  v. 
Holloman,  63  N.  0.  E.  475. 

4.  Endorsements  by  third  persons  of  a  note  payable  by 
A  to  B, — if  made  at  the  time  of  its  execution,  bind  them, 
according  to  the  intention  of  the  parties,  either  as  joint 
principals  or  as  sureties.     Baker  v.  Robinson,  63  N".  0.  E.  191. 

5.  An  endorsement  in  blank  by  the  payee  of  a  note,  is 
presumed  to  have  been  intended  as  a  transfer  thereof;  but 
this  presumption  may  be  rebutted,  en.  gr.,  by  parol  proof 
that  it  was  intended  to  show  a  receipt  of  the  money,  from 
an  agent  of  the  maker.     Davis  v.  Morgan,  64  N.  0.  E.  570. 

6.  A  note  payable  "in  current  notes  of  the  State  of  North 
Carolina,"  is  not  negotiable;  therefore,  under  our  former  sys- 
tem an  endorsee  thereof  could  not  maintain  an  action  at  law 
upon  it,  in  his  own  name.  Warren  v.  Brown,  64  N.  C.  E. 
381. 

7.  An  endorser  who  pays  off  and  discharges  the  note  of 
his  principal  can  only  recover  from  the  latter  the  amount 
actually  paid  by  him.     Pace  v.  Boberson,  65  N.  C.  E.  550. 

8.  If  a  note  be  given  for  the  lease  of  a  tract  of  land,  and 
it  appears  that  the  purpose  of  the  lease  was  to  raise  food  for 
laborers  employed  to  make  iron  for  the  Confederate  govern- 
ment :  held,  that  such  a  note  is  not  illegal  and  void  on  that 
account;  the  courts  cannot  take  into  consideration  such 
indirect  and  remote  consequences.  McKesson  v.  Jones,  66 
N.  C.  E.  258. 

9.  Where,  in  an  action  upon  such  note,  one  of  the  plain- 
tiffs is  introduced  as  a  witness,  and  it  is  proposed  to  ask  him 
whether  he  did  not  know  the  purpose  of  the  lease :  held,  that 
such  question  is  immaterial,  as  it  could  make  no  difference 
whether  the  plaintiffs  knew,  or  did  not  know,  the  purpose  of 
the  lease.     Ibid. 

10.  Where  a  promissory  note  was  given  by  A  as  principal 
and  B  as  surety,  the  consideration  of  which  was  the  hiring 
of  a  substitute  in  the  Confederate  States  army,  and  after- 
wards the  surety,  at  the  request  of  the  principal,  paid  off 
said  note  at  its  value,  and  the  principal  gave  his  note  to  the 
surety  for  the  amount  paid:  held,  that  the  last  contract  was 


BILLS  OF  EXCHANGE,  &c.  55 


a  new  and  independent  one,  founded  upon  the  consideration 
of  money  paid  at  the  request  of  the  principal,  and  that  it 
was  not  affected  by  the  illegality  of  the  original  note,  nor  by 
any  knowledge  which  the  surety  may  have  had  of  that  fact. 
Powell  v.  Smith,  66  X.  0.  R.  401. 

11.  A  note  founded  upon  an  illegal  consideration,  pay- 
able one  day  after  date,  endorsed  one  day  from  its  date,  can- 
not be  recovered  on  by  the  endorsee.  Baucum  v.  Smith.  66 
N.  0.  R.  537. 

12.  A  note  payable  one  day  after  date  is  due  one  day 
after  date.     Ibid. 

13.  If  money  be  lent  to  aid  in  the  accomplishment  of  an 
illegal  purpose,  such  illegality  is  not  purged  by  the  borrower 
failing  so  to  apply  the  money.  Hence,  where  money  was 
borrowed  to  hire  a  substitute  for  the  Confederate  war  service, 
and  the  borrower  did  not  hire  such  substitute,  the  lender 
cannot  recover  on  the  note  given  to  secure  such  loan.  Kings- 
bury v.  Fleming,  66  N".  C.  R.  524. 

14.  A  single  bill,  given  for  money  borrowed  to  pay  a  debt 
theretofore  contracted,  by  reason  of  the  loan  of  money  to  hire 
a  substitute  for  the  Confederate  war  service,  is  not  tainted 
with  an  illegal  consideration.  Kingsbury  v.  Suit  66  N.  C.  R. 
601.  ' 

15.  The  act  of  the  obligor  in  having  previously  borrowed 
money  to  pay  such  substitute,  though  contrary  to  public 
policy,  had  been  completed  before  he  borrowed  the  money 
from  the  plaintiff,  therefore  the  single  bill,  given  for  the 
money  last  borrowed,  is  a  new  and  independant  contract 
between  different  parties,  in  no  way  including  the  illegal 
transaction  and  its  subsequent  connection  with  the  matter 
is  too  remote  to  affect  the  obligee.     Ibid. 

16.  Where  an  agent  of  the  War  Department  of  the  Con- 
federate government  issued  the  following  instrument:  "  Con- 
federate States  Depository,  Wilmington,  pay  Messrs.  Colie 
&  Co.,  or  order,  twenty  thousand  dollars,"  which  was  endorsed 
by  the  payees  to  the  defendant,  who  endorsed  it  to  another 
person,  by  whom  it  was  endorsed  to  the  plaintiff:  it  was  held, 
(Rodman,  J.,  dissenting,)  that  the  instrument  was  illegal; 
that  such  illegality  was  apparent  upon  its  face,  and  extended 
to  all  the  endorsements.     Cronley  v.  Hall,  67  N.  C.  R.  9. 

17.  A  bona  fide  endorsee  of  negotiable  notes  before  matu- 
rity, takes  them,  according  to  the  law  merchant,  free  from 
all  equities  or  drawbacks  except  endorsed  payments.  Black- 
*&er  v.  Phillips,  67  N.  C  R.  340. 

18.  Where  the  owner  of  land  contracted  to  sell  the  same, 


56 


BILLS  OF  EXCHANGE,  &c— BONDS. 


and  to  secure  the  payment  of  the  purchase  money  took  nego- 
tiable notes,  and  afterwards,  and  before  maturity,  transfer- 
red said  notes  to  a  third  person  :  Held,  that  the  vendee,  upon 
payment  of  said  notes,  was  entitled  to  a  conveyance  of  the 
land.     Ibid. 

19.  A  creditor  who  buys  at  execution  sale  the  interest  of 
a  vendor  in  a  tract  of  land  contracted  to  be  sold,  and  the  title 
of  which  is  held  as  security  for  the  purchase  money,  acquires 
only  the  legal  title,  subject  to  the  equities  of  the  vendee.  He 
acquires  no  interest  equitable  or  otherwise  in  the  notes  given 
as  the  security  for  the  purchase  money      Ibid. 

20.  If  a  statute  declares  a  security  void,  it  is  void  in  who- 
soever hands  it  may  come.  If,  however,  a  negotiable  secu- 
rity be  founded  on  an  illegal  consideration,  (and  it  is  imma- 
terial whether  it  be  illegal  at  common  law  or  by  statue,)  and 
no  statue  says  it  shall  be  void,  the  security  is  good  in  the 
hands  of  an  innocent  holder,  or  of  one  claiming  through  such 
holder.  Glenn  v.  The  Farmer's  Bank  of  North  Carolina,  70 
N".  0.  R  191. 

21.  A  makes  his  note  to  B  on  the  7th  June,  1857,  and 
on  the  12th  August,  1860,  0  endorses  on  the  back,  "Pay  the 
within  to  D,"  signing  his  name :  Held,  that  0  was  not  liable 
either  as  an  endorser  or  guarantor,  and  that  his  indorsement 
merely  passed  the  property  in  the  note  to  D.  Crawford  v. 
Lytle,  70  N.  0.  E.  385. 

22.  When  a  defendant  offers  to  pay  a  draft  within  fifteen 
days,  presented  to  him  by  an  agent,  who  communicates  the 
offer  to  the  holder  of  the  draft,  and  is  instructed  by  him  to 
grant  the  indulgence,  which  instruction  is  told  the  defendant  t. 
Held,  that  the  offer  was  a  continuing  one,  and  that  his  condi- 
tional acceptance  bound  the  defendant  as  if  it  had  been  done 
when  first  presented.  Wylie,  Roddy  &  Amis  v.  Brice,  70 
N  0.  R.  422. 

See  (Attorney,  7.)  (Practice — Some  miscellaneous  rules 
of  practice,  8  )     (Usury,  2.) 


BONDS. 


I.  Of  their  execution. 

II.  Of  the  ratification  of  bonds. 

III.  Of  transfer  of  bonds. 

IV.  Of  the  consideration  of  bonds. 
V.  Bond  for  title. 


VI.  Bond  given  for  the  hire  or  price 

of  slaves. 

VII.  Of  the  construction  of  bonds 

and  their  conditions. 


BONDS— I.— II.— Ill— IV.  57 


I.     OF  THEIR  EXECUTION. 


A  bond  signed  by  the  defendant  before  the  name  of  the 
obligee  or  the  amount  thereof  is  inserted,  is  not  the  deed  of 
the  defendant,  and  cannot  be  recovered,  although  several  pay- 
ments have  been  made  thereon.  Burden  v.  Soutlierland,  70 
N.  C  R.  528. 

II.    OF  THE  RATIFICATION  OF  BONDS. 

1.  Bonds  issued  and  signed  by  the  last  chairman  of  the 
county  court,  after  the  adoption  of  the  present  Constitution 
abolishing  that  court,  in  payment  of  the  county's  subscription 
to  the  capital  stock  of  a  railroad  company  made  by  a  former 
chairman  according  to  law,  which  bonds  were  countersigned 
by  the  clerk  of  that  county  and  sealed  with  the  county  seal, 
and  accepted  by  the  President  of  the  road  in  payment  of  the 
county  subscription,  are  proper  subjects  of  ratification,  and 
when  such  bonds  are  ratified,  they  are  valid.  Alexander  v. 
Commissioners  of  McDowell,  70  N.  C.  R.  208. 

2.  When  it  is  omitted  in  the  Act  authorizing  a  county 
to  issue  bonds  to  pay  its  subscription  to  a  railroad — by  whom 
the  bonds  are  to  be  signed  and  issued — a  succeeding  Legis- 
lature has  the  power  to  amend  the  Act  in  this  particular, 
nunc  pro  tunc,  and  thus  rendered  valid  the  action  of  those 
who  issued  the  bonds  without  express  authority.     Ibid. 

III.     OF  TRANSFER  OF  BONDS. 

1.  Bonds  issued  by  municipal  corporations,  under  their 
corporate  seal,  payable  to  bearer,  are  negotiable,  and  are  pro- 
tected in  the  hands  of  the  rightful  owner,  by  the  usages  of 
commerce,  which  are  a  part  of  the  common  law.  Weith  and 
A  rents  v.  City  of  Wilmington,  78  X.  0.  R.  24. 

2.  The  purchaser  of  a  bond  from  one  who  is  not  an  agent 
of  the  obligee,  but  to  whom  the  bonds  had  been  given  for  the 
purpose  of  handing  it  to  a  lawyer  for  collection,  acquires  no 
interest  therein,  and  cannot  maintain  an  action  lor  its  recov- 
ery. McMinn  v  Freeman,  08  X.  0-  R.  341. 

IV.     OF  THE  CONSIDERATION  OF  BONDS. 

1.  Bonds  require  no  consideration.  Howell  v.  Watson, 
63  X.  0.  R.  454. 

2.  Want,  or  failure  of  consideration,  is  no  defence  to  an 
action  upon  a  sealed  instrument.  Purler  v.  Flora,  G3  N.  0. 
R  474. 


58  BOXDS— IV. 

3.  A  person  who  sold  mules  to  an  agent  of  the  Confeder- 
ate government,  with  a  knowledge  that  they  were  to  be  used 
iu  the  military  service  of  such  government,  cannot  recover 
upon  a  bond  given  for  the  price.  Martin  v.  McMillan,  65 
K  C.  E.  199. 

4.  A  bond  given  in  March,  1864,  for  Confederate  money 
borrowed  at  that  time,  payable  the  1st  of  October  of  the  same 
year,  "  in  four  per  cent.  Confederate  bonds  or  certificates,  or 
in  Confederate  currency  to  be  issued  after  the  1st  of  April, 
1864,"  is  not  illegal  and  void,  and  a  recovery  may  be  had  up- 
on it  for  an  amount  in  United  States  currency,  to  be  estima- 
ted according  to  the  legislative  scale.  Haughton  v.  Meroney, 
65  N.  C.  E.  124. 

5.  Where  a  county  contracted  a  debt  during  the  late  war, 
for  the  purpose  of  equipping  soldiers  for  the  Confederate  ser- 
vice, and  afterwards  borrowed  money  to  pay  that  debt :  held, 
that  a  recovery  can  be  had  on  a  bond  given  for  such  money, 
on  the  ground  that  illegibility  is  too  remote.  Poindexter  v. 
Davis,  67  N.  C.  E.  112. 

6.  A  note  given  during  the  late  war,  for  money  borrowed 
expressly  for  the  purpose  of  paying  taxes  to  a  county  in  one 
of  the  rebellious  States,  was  not  founded  upon  illegal  consid- 
eration, and  the  lender  was  held  to  be  entitled  to  recover  up- 
on it  after  the  close  of  the  war.  Williams  v.  Monroe,  67  N. 
C.  E.  133. 

7.  Bonds  given  for  the  loan  of  money  to  A  B,  to  be  used 
in  purchasing  a  forge,  at  which  iron  was  to  be  made  for  the 
Confederate  government,  of  which  A  B  was  duly  informed, 
cannot  be  recovered.     Logan  v.  Plummer,  70  N-  C  E.  388. 

8.  The  principle  established  in  such  cases  is,  that  wherever 
a  dollar  has  been  expended  to  destroy  the  life  of  the  Eepub- 
lic,  it  shall  never  return  to  the  pocket  of  the  owner.     Ibid. 

9.  Mere  inadequacy  of  consideration,  without  fraud  or  im- 
position, is  no  defence  to  a  suit  on  a  bond ;  nor  is  it  an  ob- 
jection, even  when  equity  is  invoked  to  enforce  specific  per- 
formance ;  and  much  less  is  it  an  objection  when  it  is  invoked 
to  relieve  against  a  contract.  Winslow  v.  Wood,  70  N.  C. 
E.  430. 

10.  Where  A  sold  a  mule  to  B,  which  had  a  latent  dis- 
ease, of  which  it  died  within  a  week  after  sale  without  render- 
ing any  service  of  value :  Held,  in  a  suit  against  B,  on  the 
bond  given  for  the  mule,  that  the  failure  of  consideration  was 
no  defence,  and  that  A  was  entitled  to  recover.     Ibid. 


BONDS— V.  51) 

V.     BOND  FOR  TITLE. 

1.  The  interest  of  one  who  holds  lands  under  a  bond  for 
title,  the  price  not  having  been  fully  paid  is  not  subject  to 
sale  under  execution  ;  therefore,  a  purchaser  at  such  a  sale 
has  no  equity  to  file  a  bill  against  the  parties  to  the  bond, 
proffering  to  pay  the  money  due  thereon  and  asking  that  upon 
such  payment  he  may  have  a  title.  Ledbetter  v.  Anderson, 
Phil.  Eq  R.  323. 

2.  A  having  made  a  bond  for  the  title  to  certain  land  to  B, 
the  latter  contracted  by  bond  to  sell  the  same  to  0,  and  give 
him  possession  ;  held  that  it  was  uot  competent  thereupon  for 
A  and  B  to  recind  their  contract  so  as  to  deprive  0  of  his 
equity — which,  as  he  had  already  paid  B,  was  to  obtain  a 
conveyance  from  A  upon  paying  him  whatever  was  due  to 
him  upon  his  contract  with  B.  Shaver  v.  Shoemaker,  Phil. 
Eq.  B.  327. 

3.  When  a  purchaser  of  land,  upon  taking  a  bond  for 
title,  gives  in  payment  therefor  a  note  expressing  ou  its  face 
it  is  so  given,  the  note  itself  will  be  notice  of  the  vendee's 
equity  in  case  the  title  of  the  laud  shall  prove  defective,  and 
an  assignee  or  holder  of  the  note  cannot,  in  case  of  such  defect 
in  the  title  of  the  laud,  recover  on  the  note  though  he  took  it 
before  it  became  due.     Howard  v.  Kimball,  65  N.  0.  R.  475. 

4.  A  purchaser  of  land  is  entitled  to  all  that  he  bargained 
for,  and  is  under  no  obligation  to  accept  a  part  only,  with 
warranty  as  to  the  other  part,  or  to  accept  compensation, 
unless  the  part  as  to  which  a  good  title  cannot  be  made,  does 
not  materially  affect  the  value,  and  it  is  seen  that  the  obli- 
gation is  uot  taken  upon  the  merits,  but  only  as  pretext  to 
get  rid  of  the  purchase.     I  bid. 

5.  In  a  suit  upon  a  note,  expressed  on  its  face  to  have 
been  given  for  the  purchase  of  a  tract  of  land,  the  title  of 
which  has  proved  defective,  as  the  plaintiff  cannot  recover 
upon  the  note,  the  proper  jiidgmemt  now  to  be  rendered  is, 
that  the  contract  of  sale  be  rescinded,  and  that  the  title  bond 
and  note  be  cancelled,  so  as  to  effect  what  would  have  been 
done  in  equity  under  the  old  mode  of  procedure.     Ibid. 

6.  Where,  upon  the  sale  of  land,  a  bond  to  make  title 
upon  the  payment  of  the  purchase  money  was  given  to  the 
purchaser,  and  afterwards  upon  the  assignment  of  his  inter- 
est, the  money  was  paid  by  the  assignee :  It  was  held,  That 
he,  before  a  deed  was  executed  to  him  had  such  an  unmixed 
trust  as  was  liable  to  be  sold  under  execution.  Battle's  Ee- 
visal,  chap.  44,  sec  5.     Phillips  v.  Davis,  69  N.  0.  R.  117. 


60  BONDS— VI— VII 

7.  An  intestate  sells  B  a  tract  of  laud  for  $800,  putting 
him  in  possession  and  giving  him  a  bond  to  make  title  when 
the  purchase  money  is  paid ;  B  pays  part  and  refuses  to  pay 
the  balance  of  the  purchase  money.  A,  the  Administrator, 
sues  B,  demanding  1st,  a  rescission  of  the  contract ;  2d,  a 
writ  of  possession ;  and  3d,  damages  :  held,  that  he  is  entitled 
to  neither;  but  that  he  was  entitled  to  a  judgment  for  the 
unpaid  balance,  and  to  a  sale  of  the  land,  if  such  judgment 
is  not  satisfied.     Mitchell  v.  Wood,  70  N.  0.  E.  297. 

8.  A  penal  bond,  conditioned  to  make  title  to  laud  when 
the  purchase  money  is  paid,  may  be  assigned,  and  an  action 
for  damages  for  the  non-performance  of  the  condition  may 
be  brought  by  the  real  party  in  interest.  Utleu  v.  Foil,  70 
3T.  0.  E.  303. 

VI.    BOND  GIVEN  FOR  THE  HIRE  OR  PRICE  OF  SLAVES. 

1.  A  bond  given  in  January,  1867,  for  the  hire  of  slaves 
during  that  year  is  subject  to  no  deduction  on  account  of 
emancipation.       Woodfin  v.  Sluder,  Phil.  L.  E.  200. 

2.  A  boud  given  for  the  price  of  a  slave  sold  in  1859,  is 
valid,  notwithstanding  the  public  events  which  have  hap- 
pened since,  nor  is  it  affected  by  the  fact  that  the  slave  was 
warranted  such  for  life.     West  v.  Hall,  G4  N".  0.  E  43. 

3.  A  boud  to  pay  money,  and  also  to  clothe  a  slave  is  not 
negotiable,  and  before  the  adoption  of  the  0.  0.  P.,  would 
not  be  sued  on  in  the  name  of  the  assignee  Sutton  v.  Owen,, 
65  N.  0.  E.  123. 

See  (Confederate  Mouey  37  ) 

VII.     OF  THE  CONSTRUCTION  OF  BONDS  AND  THEIR  CONDITIONS. 

1.  Where  an  obligation  had  been  given  for  $788,  payable 
in  currency  or  in  gold,  at  the  rate  of  $146  in  currency  for 
$100  in  gold,  at  the  option  of  the  holder:  held,  that  the 
holder  might  maintain  a  suit  upon  it  without  making  any 
determination  of  his  option  previous  to  that  contained  in  the 
summons  or  complaint.     Young  v  McLean,  63  K  C.  E.  576. 

2.  "  Ten  days  after  peace  is  made  between  the  United 
States  and  the  Confederate  States,"  used  in  a  bond,  to  specify 
the  time  at  which  the  money  is  payable,  mean&  ten  days  after 
peace,  and  does  not  render  the  ratification  of  a  treaty  of  peace 
between  the  powers  mentioned,  a  condition  precedent  to  the 
payment.     Chapman  v.  Waccaser,  64  N.  C  E.  532. 

3.  Where  a  note  payable  as  above,,  called  for  payment 


BONDS—  VII.  61 

'u  in   current  money  at  that  time,"  the  scale  is   expressly 
excluded.     Ibid 

4.  An  action  on  a  note  payable  "  six  months  after  a  rati- 
fication of  a  treaty  of  peace  between  the  United  States  and 
the  Confederate  States,  is  premature  and  cannot  be  sus- 
tained. The  event  constitutes  a  condition  precedent  which 
has  not  and  will  not  be  performed.  McNinch  v.  Ramsay, 
<GQ  X.  0.  E.  229. 

5.  The  stipulation  contained  in  a  contract  in  these  words, 
viz:  "A  B  contracts  with  C  D  to  furnish,  at  Long  Creek 
furnace,  from  500  to  1000  bushels  of  coal  daily  at  6£  cents 
per  bushel,  to  be  measured  at  the  pit ;  C  D  to  furnish  the 
timber  gratis,  wherever  he  may  see  fit,  reserving  groves  and 
fruit  trees,  and  advance  to  A  B  all  the  money,  weekly,  neces- 
sary to  pay  off  the  wood-choppers — coal  to  be  paid  for  on 
-delivery  at  the  furnace,"  are  dependent,  and  if,  without  fault 
ou  the  part  of  the  owner  of  the  furnace,  and  without  legal 
excuse,  the  other  fails  to  deliver  the  quantity  of  coal  agreed 
to  be  delivered,  the  owner  of  the  turnace  being  sued  for  the 
value  of  the  coal,  &c,  furnished,  may  properly  set  up  such 
failure  bv  way  of  counter-claim.  Burton  v.  Wilkes,  06 
K  C  E  (304. 

6.  The  condition  of  a  bond  given  by  the  Treasurer  of  a 
Railroad  Compauy  that  he  "  shall  faithfully  discharge  the 
duties  of  the  office,  and  well  and  correctly  behave  therein," 
does  not  bind  him  to  keep  the  money  of  the  company  safely 
against  all  hazards.  It  only  binds  him  to  an  honest,  diligent 
and  competently  skillful  effort  to  keep  the  money.  Hence, 
where  the  Treasurer  deposited  the  money  of  the  company 
to  his  credit  as  such  in  a  banking  house,  which  was  at  the 
time  in  good  standing  and  credit,  and  was  considered  by  the 
community  a  safe  place  of  deposit  for  money :  it  was  held, 
that  he  and  his  sureties  were  not  responsible  for  its  loss  by 
the  sudden  and  unexpected  failure  of  the  banking-house. 
Atlantic  &  N.  C.  Railroad  Co.  v.  Cowles  et  al,  09  X.  C.  B.  59. 

7.  Though  the  officer  of  a  railroad  company  is  bound  to 
know  the  by-laws  of  the  corporation,  it  does  not  follow  that 
the  surities  to  his  bond  are  presumed  to  know  them  unless 
there  be  a  reference  to  them  in  the  bond.  The  obligation  of 
the  sureties  is  confined  to  the  words  of  their  bond,  and  can- 
not be  extended  beyond  them.     Ibid. 

8.  A  boud  payable  "with  interest  from  date,  the  interest 
to  be  paid  annually,"  is  due  and  payable  from  date,  and  does 
not  require  a  demand  upon  the  obligors  for  payment  before 
suit  brought.     Knight  v.  Braswell,  70  X.  C.  It.  709. 


02  BOUNDARY. 

\ 


BOUNDARY. 


1.  "  Tin  nee,  N.  57,  E.,  34  poles,  with  the  ditch,  to  a  wil- 
low stump  on  the  bank  of  the  ditch," — the  ditch  being  at  the 
beginning,  18  links,  and  at  the  end  2  poles,  wide,  and  the 
willow  stump  being,  not  directly  upon  its  bank,  but,  upon  a 
run  which  conveyed  the  water  from  the  ditch  :  means,  through 
the  middle  of  the  ditch  to  its  end,  and  thence  down  the  run 
to  the  widow  stump.  Cannier  v.  Henderson,  04  N.  0.  R. 
409. 

2.  Where  the  call  of  a  deed  was  for  a  boundary  on  the 
north  by  the  land  of  J.  K.,  and  J.  R.  had  at  ract  of  land  be- 
longing to  himself,  part  of  the  southern  boundary  of  which 
was  north  of  the  land  described,  and  had,  as  tenant  in  com- 
mon with  another  person,  another  tract  lying  also  north  of  the 
land  in  question,  it  seems  to  be  erroneous  in  a  court  to  charge 
the  jury  merely  that  the  call  in  the  deed,  which  was  for  land 
of  J.  R.,  meant  the  land  of  J.  R.  lying  north  of  the  land  in 
dispute.     Osborne  v.  Johnston,  05  X.  G.  R.  22. 

3.  It  is  competent  for  one  party  to  a  suit,  involving  a 
question  of  boundary,  to  show  that  another  party  to  such 
suit  pointed  out  a  certain  five  as  his  corner,  if  the  spot  des- 
cribed by  such  witness,  is  by  another  witness,  identified  as 
the  disputed  corner.     West  v.  Shaw,  07  N.  C.  R.  483. 

4.  In  questions  of  boundary,  it  is  competent  to  prove  by 
surveyors,  as  experts,  that  the  marks  on  trees  on  a  certain 
line  are  apparently  of  a  certain  age.     Ibid 

5.  Where  the  phraseology  of  a  deed,  under  which  one  of 
the  parties  to  such  action  claims  the  land,  leaves  it  uncertain 
whether  a  pond  is  embraced  by  it,  or  the  line  ran  near  to  it, 
but  so  as  not  to  cover  it,  an  instruction  prayed  :  "  that  the 
land  of  the  defendant  should  be  so  located  as  to  include  within 
its  boundaries  the  (said)  pond,"  was  properly  refused.     Ibid. 

0.  A  tree  marked  and  called  for  as  a  pointer,  with  a  line 
of  marked  trees  leading  to  the  other  corner,  must  control  dis- 
tance.    I  bid. 

7.  It  is  settled,  that  where  a  tract  of  land  is  described  by 
course  and  distance,  and  also  by  natural  boundaries,  and 
there  is  a  discrepancy,  the  latter  description  controls.  Upon 
this  principle,  it  teas  held,  that  when  a  town  lot  was  sold, 
and  in  order  to  identify  it  the  number  or  name  of  the  lot 
was  given,  and  reference  was  also  made  to  streets,  the  latter 
description  must  give  way  to  the  former;  tor  the  lot  was  the 
object  and  not  the  street ;  and  t\ie  description,  in  pursuance 


BOUNDARY.— BURGLARY.  63 

of  the  primary  object  for  which  the  lot  was  numbered  or 
named,  is  less  apt  to  be  erroneous  than  the  description  by 
reference  to  the  number  or  name  of  the  street,  as  tliat  is 
incidental,  and  is  secondary,  and  not  the  primary  object  for 
which  the  streets  were  named.  Nash  v.  Wil.  &  Weldon  JR. 
B.  Co.,  64  K  O.K.  413. 

8.  What  are  the  termini  or  the  boundary  of  a  grant  or 
deed,  is  a  matter  of  law  ;  where  the  termini  are,  is  matter  of 
fact  tor  the  jury.  Therefore,  where  there  was  evidence  tend- 
ing to  establish  a  certain  corner  at  a  particular  place,  it  was 
errror  in  the  presiding  Judge  to  say,  as  a  conclusion  of  law, 
the  corner  was  at  a  different  place.  Clark  v.  Wagoner,  70 
K".  0.  R.  706. 


BURGLARY. 

1.  Where  a  prisoner  in  the  night  time  knocked  at  the  door 
of  a  dwelling-house,  and  on  being  challenged  from  within  gave 
his  name  in  a  feigned  voice  as  that  of  a  friend,  and  thus  ob- 
tained immediate  admittance,  and  then  committed  a  robbery: 
held,  to  be  burglary.      State  v.  Johnson,  Phil.  L.  R.  186. 

2.  Where  A  and  B  are  jointly  indicted  with  others,  for 
wilfully  setting  fire  to  and  burning  a  barn  containing  grain, 
and  the  evidence  showed  that  A  and  B  were  not  present,  but 
were  accessories  before  the  fact :  held,  that  they  could  not  be 
convicted  as  principals  under  this  indictment.  State  v.  Dearer, 
65  K  O.  R.  572. 

3.  The  effect  of  the  act  of  1868-'69,  ch.  167,  entitled  "an 
act  in  relation  to  punishments,"  was  not  to  make  "  misde- 
meanors" of  offences  which  were  formerly  felonies.     Ibid. 

4.  A  building  within  the  curtilage,  and  regularly  used  as 
a  sleeping-room,  is  in  contempation  of  law  a  dwelling-house 
in  which  burglary  can  be  committed.  State  v.  Mordecai,  68 
1ST.  0.  R.  207. 

5.  The  house  in  which  the  burglary  was  committed,  and 
that  occupied  by  the  family  of  the  prosecutor  were  distant  30 
yards  from  each  other:  held,  to  be  no  error  in  the  Judge's 
refusing  to  charge  that  one  could  not  have  two  dwelling-houses 
in  that  distance  from  each  other.     Ibid. 

6.  The  defendants  went  to  the  store-house  of  the  prosecu- 
tor, in  which  he  was  sleeping,  between  the  hours  of  10  and  11 
o'clock  at  night,  and  knocking  at  the  door  called  h  s  name 
twice ;  he  answered  the  call,  and  told  them  to  wait  until  he 


64      BURGLARY.— CARTWAY.— CERTIORARI. 

put  on  his  breeches,  which  he  did  and  opened  the  door,  when 
the  defendants  entered  the  house  and  called  for  meat,  and  as 
the  prosecutor  was  in  the  act  of  getting  the  meat  he  was 
knocked  down  by  one  of  the  defendants,  and  the  store  rob- 
bed: held,  to  be  a  sufficient  breaking^)  constitute  the  crime 
of  burglary.     Ibid. 

7.  An  indictment  for  burglary  iu  breaking  into  a  dwelling 
house  is  not  sustained  by  proof,  that  the  prisoner  broke  out 
of  the  house.     State  v.  McPherson,  70  K".  0.  R,  239. 


CARTWAY. 

The  record  of  an  order  made  in  a  county  court  for  laying 
out  a  cart  way  recited — "seven  justices  being  present," — 
without  giving  their  names;  held  that  such  record  was  fatally 
defective,  and  the  order  void.    Link  v.  Brooks,  Phil  L.  R.  499. 


CERTIORARI. 

1.  Where  a  sheriff  having  returned  an  execution  "  satis- 
fied," afterwards  by  leave  of  court,  amended  the  return  thus: 
"  Eeceived  from  the  defendant  Confederate  money  for  the 
debt,  which  the  plaintiff  refuses  to  take,  therefore  the  sale  is 
not  satisfied,  and  the  same  is  returned  that  an  alias  may  issue 
to  sell  the  land  ;"  and  then  taking  out  such  alias,  levied  upon 
the  land :  held,  that  the  petition  of  the  defendant  in  such 
execution  praying  for  a  certiorari  and  supersedeas,  ought  not 
to  have  been  dismissed,  but  should  have  been  placed  upon 
the  trial  docket.    Atkin  v.  Mooney,  Phil.  L.  R.  31. 

2.  Where  a  suitor  iu  the  Court  of  Equity  for  Person 
county  made  up  his  mind  to  appeal  from  an  order,  before 
Thursday  of  the  term,  and  was  prevented  from  doing  so  by 
the  previous  departure  of  the  Judge :  held,  that  it  was  a 
proper  case  for  a  certiorari.  Reade  v.  Hamlin,  Phil.  L.  R. 
128. 

3.  At  Spring  Term,  1867,  the  plaintiffs  appealed  to  the 
Supreme  Court  from  a  decree  made  at  that  Term  ;  at  the 
June  Term,  18G7,  of  the  Supreme  Court  they  were  informed 
that  the  case  had  not  been  sent  up;  but  they  took  no  further 
steps  until  January  Term,  1809,  when  they  tiled  a  petition 
in  the  Supreme  Court  for  a  certiorari ;  held,  that  as  the 


CERTIORARI.— CLAIM  AND  DELIVERY,  &c.  G5 

petitioners  disclosed  no  merits  in  regard  to  the  original  cause 
of  action,  and  had  been  guilty  of  laches  iu  preferring  their 
application — the  petition  should  be  refused.  March  v. 
Thomas,  63  N  C.  R.  249. 

4.  Where  a  matter  involves  the  power  of  the  Superior 
Court  and  error  in  its  exercise,  as  where  in  a  capital  case,  a 
Judge  improperly  discharges  a  jury,  and  refuses  to  discharge 
the  prisoner;  the  record  of  the  court  below  may  be  brought 
up  for  review  by  a  writ  of  certiorari  iu  the  nature  of  a  writ 
of  error.  Art.  4,  sec.  10  Constitution.  State  v.  Jefferson, 
66  N.  C.  R.  309. 

5.  In  such  case  the  proper  course  is  to  ask  for  a  rule  to 
show  cause  why  the  writ  should  not  issue,  and  as  a  founda- 
tion for  the  order,  the  court  will  require  a  petition  in  due 
form.     Ibid. 

6.  If  a  party  is  deprived  of  an  appeal  without  his  laches, 
he  is  entitled  to  a  certiorari,  as  a  substitute  for  au  appeal. 
Skinner  v.  Maxwell,  61  N.  0  R.  257. 

7.  Au  appeal  may  be  taken  without  the  sanction  of  a 
Judge,  it  the  parties  can  make  out  the  case  by  agreement, 
and  without  his  intervention.  But  whether  they  can  perfect 
an  appeal,  not  only  without  the  sanction  but  iu  spite  of  the 
prohibition  of  the  judge;  Quere? — Ibid. 

8.  Though  au  appeal  may  be  brought  up  iu  spite  of  the 
prohibition  of  a  Judge,  yet,  as  the  practice  has  been  so  uni- 
formily  the  other  way,  the  Court  would  not  feel  at  liberty  to 
refuse  a  party  a  certiorari,  as  a  substitute  for  the  remedy  of 
which  he  had  been  deprived.     Ibid. 

9.  In  a  petition  for  a  certiorari,  as  a  writ  of  false  judgment, 
it  must  be  affirmed  or  shown  that  a  judgment  was  rendered; 
if  the  certiorari  is  applied  for  as  a  substitute  for  an  appeal, 
the  party  must  show  that  he  has  been  improperly  deprived 
of  his  appeal,  or  has  lost  it  by  accident.  Barton,  Ex  parte, 
70  N.  C.  R.  134. 

See  ( Contempt,  10.)  (Pleading — Of  the  verdict  and  judg- 
ment, 14.) 


CLAIM   AND    DELIVERY    OF   PER- 
SONAL  PROPERTY. 

1.     To  entitle  a  party  to  maintain  an  actiou  for  claim  and 
delivery  of  personal  property,  there  must  be  a  compliance 
with  all  the  requisites  specitied  in  chap.  II  of  title  9,  C.  C.  P. 
5 


66  CLAIM  AND  DELIVERY,  &c. 

(Battle's  Rev.  e.  17,  s.  176,  et  seq.)     Hersh  v.  Whitehead,  65- 
N.  C.  R.  516. 

2.  In  actions  to  recover  the  possession  of  personal  prop- 
erty, the  plaintiff  may  not,  if  he  please,  make  the  affidavit 
and  give  the  undertaking  required  for  the  immediate  delivery 
of  the  property  to  him.  If  he  do  not,  his  judgment,  if  he 
succeeds,  is  for  the  possession  of  the  property,  or  for  its  value,, 
and  damages  for  detention,  as  in  the  old  action  of  detinue. 
Jarman  v.  Ward,  67  N.  0.  R.  32. 

3.  To  maintain  an  action  to  recover  the  possession  of  per- 
sonal property,  whether  resort  is  had  to  the  provisional  rem- 
edy of  the  Code  of  Procedure  or  not,  the  plaintiff  must  show 
title  or  right  to  the  present  possession  of  the  property  sued 
for,  which  must  be  specific  and  be  identified  by  a  sufficient 
description.     Blaldey,  Assignee,  v.  Patrick,  67  N.  C.  R.  40. 

4.  When  the  owner  of  property  is  deprived  of  possession, 
and  regains  the  same,  he  may,  in  an  action  brought  against 
him,  and  as  full  defence  thereto,  show  his  title  to  the  prop- 
erty, notwithstanding  that,  in  the  reception,  he  may  have 
committed  an  act  calculated  to  produce  breach  of  the  peace. 
Alsbrook  v.  Shields,  67  N.  C.  R.  333. 

5.  Therefore,  where  a  person  is  sued  for  the  conversion  of 
a  bale  of  cotton,  he  may  set  up  a  lieu  under  a  subsisting  lease 
and  show  his  title  as  landlord,  and  is  not  compelled  to  resort 
to  an  action  for  "claim  and  delivery,"  under  the  act  of 
1868-'69.     Ibid. 

6-  A  plaintiff  claiming  such  property  is  not  restricted  to 
the  remedy  of  ''claim  and  delivery,"  but  may  bring  an  action 
in  the  nature  of  trover.     Ibid. 

7.  An  action  for  the  recovery  of  the  possession  of  personal 
property,  (in  the  nature  of  detinue  under  our  old  system,)  will 
not  lie  against  one  who  was  not  in  possession  of  the  property 
at  the  time  the  action  was  commenced.  Haughton  v.  New- 
berry, 69  N.  C.  R.  456. 

8.  Nor  can  a  plaintiff  in  such  action,  under  a  general  pray- 
er for  "other  relief,"  recover  the  judgment  warranted  by  the 
facts  proven.  For  although  the  names  and  technical  forms- 
of  actions  are  abolished  by  the  Constitution,  yet  in  the  very 
nature  of  things,  there  must  be  distinctions  in  respect  to  the 
remedies  applicable  to  different  cases.     Ibid. 

9.  In  an  action  for  claim  and  delivery  of  personal  prop- 
erty (Replevin,  Rev.  Code,  chap.  98),  when  the  property  can- 
not be  re-delivered  by  plaintiff  in  specie,  the  value  thereof,  in 
case  of  a  judgment  for  defendant,  should  be  assessed  at  the 
time  of  the  trial,  and  not  at  the  time  of  its  seizure  by  the 
sheriff.     Holmes  v.  Godwin,  69  N.  C.  R.  467. 


CLAIM,  &c—  CLAIMS  AGAINST  THE  STATE.    67 
10. 


In  an  action  for  the  possession  of  personal  property, 
see.  170,  C.  C.  P.,  a  third  party  claiming  such  prop- 
erty, looses  his  right  to  be  made  a  party  to  the  suit,  after  a 
lapse  of  three  years  from  the  filing  his  affidavit  and  his  mo- 
tion to  allow  him  to  interplead.  Clemmons  v.  March.  70 
N.  C.  R,  olU. 

11.  Whether  such  claimant  can  appeal  from  an  order  of 
the  presiding  Judge,  refusing  his  application  to  be  made  a 
pa  rty —  fJ  u  ere.     I  b  id. 

See  (Damages  o.) 


CLAIMS   AGAINST   THE   STATE. 

1.  The  provision  in  the  new  Constitution  (Art.  4,  s.  11,) 
giving  to  the  Supreme  Court  original  jurisdiction  to  hear 
claims  against  the  State,  &c,  probably  intends  that  such 
hearing  shall  be  chiefly  of  the  law  involved  in  any  such  claims, 
including  only  such  general  observations  upon  the  facts  as 
may  be  required  to  render  the  rules  of  law  laid  down,  iutelli- 
gible  in  their  special  appplication.  At  all  events,  this  must 
be  so  in  the  absence  of  further  legislation,  providing  the 
court  with  the  proper  machinery  for  deciding  issues  of  tact. 
Bledsoe  v.  The  State,  S.  P.  Reynolds  v.  The  State  04 
N.  C.  R.  392,  400. 

2.  AVhere  a  person  was,  before  the  late  civil  war,  the  hona 
fide  holder  of  two  bonds  ot  the  State,  which  had  been  issued 
ten  years  before  for  purposes  of  internal  improvements,  and 
which  were  then  due  and  payable,  and  in  1802,  received  from 
the  State  in  payment  thereof  treasury  notes  to  the  amount 
of  the  bonds,  which  expressed  on  their  face  that  they  were 
fundable  in  the  bonds  of  the  State,  thereafter  to  be  delivered, 
and  the  bonds  had  never  been  delivered,  it  was  held,  Rod- 
man, Justice,  dissenting,  that  the  claim  was  founded  upon  an 
illegal  consideration  and  the  State  was  not  bound  to  pay  it. 
Bead  v.  The  State  of  N.  C,  Go  N.  C.  R.  194. 

3.  That  provision  in  the  Constitution  of  the  Stale,  art,  4, 
sec.  11,  which  ordains  that  "the  Supreme  Court  shall  have 
original  jurisdiction  to  hear  claims  against  the  State,  but  its 
decision  shall  be  merely  recommendatory,"  &c.,  ought  not  to 
be  invoked  in  matters  of  small  value,  particularly  when  there 
is  no  doubt  about  the  law.  The  claimant  should  apply  at 
once  to  the  Legislature  for  relief.  Sainc/air,  Owens  and 
Brown,  v.  State  of  N.  C,  07  N.  C.  R.  47. 


68  CLERKS  AND  MASTER. 


CLERKS  AND  MASTER. 

1.  A  Clerk  and  Master  who  sold  slaves  under  a  decree  in 
a  petition  for  partition,  and  instead  of  taking  bond  as  a  de- 
cree directed,  received  cash,  is,  with  his  sureties,  liable  for 
the  amount  so  received  upon  motion  for  a  summary  judg- 
ment under  Rev.  Code,  ch.  78,  sec.  5;  and  this,  whether  an 
action  on  the  bond  would  or  would  not  lie  for  the  money  as 
received  "by  virtue  of  his  office."  Broughton  v.  Haywood, 
Phil.  L.  R.  380. 

2.  By  Pearson,  C.  J.  A  Clerk  and  Master,  who  sells 
under  an  order  to  sell  upon  a  credit,  has  a  discretion  to  take 
cash  instead  of  bond  and  security,  and  is  liable  to  a  suit  on 
his  bond  for  such  money,  as  received  "  by  virtue  of  his  office." 
Ibid. 

3.  When  a  clerk  takes  a  bond  payable  six  months  after 
date,  if  the  debtor  tenders  the  money  at  the  day,  the  clerk 
is  bound  to  receive  it  without  waiting  for  an  older  for  collec- 
tion.    Ibid. 

4.  The  various  solvent  sureties  given  by  a  Clerk  and 
Master  upon  the  annual  bonds  of  any  one  term  of  office,  are 
liable  to  contribution,  inter  se,  in  a  ratio  determined  by  the 
aggregate  of  the  penalties  of  the  bonds  signed  by  each. 
Moore  v.  Boudinot,  04  N.  C.  R.  190. 

5.  A  Clerk  and  Master  who  failed  to  issue  an  execution 
based  upon  a  decree  obtained  in  1800,  until  1808,  when  the 
defendant  had  become  insolvent,  is  liable  in  damages  for 
whatever  sum  the  plaintiff  can  show  he  has  sustained  by  such 
non-feasance.     Mclntyre  v.  Merritt,  05  N.  0.  R.  558. 

6.  A  Clerk  and  Master  who  executed  bouds  as  such  in 
180O-'04-'0O,  and  collected  in  May,  1802,  a  well  secured 
note,  in  Confederate  currency,  where  he  was  directed  only  to 
collect  the  annual  interest  due  thereon,  and  invested  the 
proceeds  in  7  30  Confederate  bonds :  held,  that  the  bond  of 
the  defendant,  given  in  1800,  was  not  liable  for  the  laches  of 
defendant  in  May,  1802.      Ward  v.  Hassell,  00  N.  C.  R.  381). 

7.  In  an  action  assigniug  certain  breaches  of  the  official 
bond  of  a  Clerk  and  Master,  it  is  competent  for  the  defend- 
ant, under  a  general  denial  of  the  complaint,  to  offer  in  evi- 
dence any  circumstance  tending  to  prove  that  the  acts  com- 
plained of  were  not  a  breach  of  the  bond  as  alleged.  Clapp 
v.  Reynolds,  08  K  C.  R.  24. 

8.  Where  the  allegation  was,  that  the  Clerk  and  Master 
did  not  invest  a  certain  fund,  and  pay  the  relator  the  annual 


CLERKS,  &c.— CLERK  OF  SUPERIOR  COURT.  69 

interest,  evidence  that  the  fund  was  deposited  in  a  Savings 
Rank  in  the  presence,  and  to  the  credit  of  the  relator,  who 
afterwards  received  the  annual  interest  from  the  bank,  is 
admissible,  under  a  general  denial  of  the  complaint,  to  prove 
that  the  condition  of  the  bond  was  not  broken.     1  bid. 

0.  The  successor  of  a  former  Clerk  end  Master,  who 
received  bonds  given  tor  the  purchase  of  certain  lands  sold 
by  the  former,  collected  the  same  and  misapplied  the  proceeds 
is  liable  therefor  on  his  official  bond,  although  there  was  no 
order  for  the  former  Clerk  and  Master  to  hand  over  such 
bonds  to  him.     Alexander  v.  Johnston,  70  N.  0.  R.  295. 

See  (Confederate  money  5,  31,  32,  33,  38.)  (Sales — Judi- 
cial sales  passim.) 


CLERK  OF  THE  SUPERIOR  COURT. 

1.  A  Clerk  is  not  liable  upon  his  official  bond,  for  a  failure 
bv  him  to  issue  ex  <ijici<>  a,  notice  to  a  guardian,  to  renew  his 
bond.     State  v.  Low?,  (14  X.  C.  It.  500. 

2.  When  the  Clerk  of  a  Court  refuses  to  issue  an  execu- 
tion to  which  a  plaintiff  is  entitled  on  his  judgment,  he  has 
two  remedies  for  enforcing  his  rights.  He  may  obtain  a  rule 
on  the  clerk  as  an  officer  of  the  Court  to  compel  him  to  per- 
form his  duty,  oi  be  subject  to  an  attachment  for  a  contempt; 
or  he  may  sue  the  clerk  on  his  official  bond.  He  is  not  en- 
titled to  a  writ  of  mandamus  against  the  clerk.  Gooch  v. 
Gregory,  65  X.  C.  R,  142. 

3.  The  Clerk  of  the  Superior  Court  is  not  styled  in  the 
Constitution  -'Probate  Judge,"  nor  is  he  directed  to  be  so 
styled  by  any  act  of  assembly,  and  his  Probate  Jurisdiction 
is  incident  to  his  office  of  Clerk.  Sialey  v.  Sellars,  Go  X.  0. 
R.  467. 

4.  Hence,  a  motion  to  dismiss  a  special  proceeding  be- 
cause it  was  addressed  to  the  Clerk  of  the  Superior  Court,  in- 
stead of  to  the  Judge  of  Probate,  was  properly  refused.  Ibid. 

5.  When  money  is  invested  by  a  clerk  or  other  officer  un- 
der the  orders  of  a  Court,  the  clerk  or  other  officer  cannot 
change  the  investment  without  the  sanction  of  the  Court  or 
the  parties,  and  if  he  does  so  he  will  be  responsible  for  any 
loss  that  may  accrue,  for  he  will  be  held  to  a  much  stricter 
accountability  than  a  guardian  or  trustee  would  be  under 
similar  circumstances,  because  the  clerk  or  other  officer  might 
get  the  consent  of  the  parties  or  the  advice  and  direction  of 


70    CLERK,  &c— CODE  OF  CIVIL  PROCEDURE. 

the  Court,  while  the  guardian  or  trustee  would  be  compelled 
generally  to  act  upou  his  own  judgment.  Bountree  v.  Bur- 
nett, 09  K  C.  R.  76. 

6.  While  generally  a  clerk  or  other  officer  cannot  change 
an  investment  which  he  has  made  under  the  order  of  a  Court, 
yet  if  a  sudden  and  unexpected  loss  is  threatened,  he  may  do 
so,  but  in  such  cases  he  must  show  a  necessity  for  such  prompt 
action,  and  that  he  acted  in  good  faith  and  with  ordinary 
prudence;  and  he  must  as  soon  as  he  can  report  his  action 
to  the  Court.     Ibid. 

7.  Whenever  it  is  sought  to  establish  an  authority  in  a 
clerk,  to  bind  a  plaintiff  by  the  receipt  of  depreciated  cur- 
rency in  payment  of  a  judgment,  it  must  be  shown  either 
that  the  receipt  was  expressly  authorized  by  the  plaintiff,  or 
that  the  plaintiff  has  done  acts  from  which  such  an  authority 
may  fairly  be  implied.     Purvis  v.  Jackson,  09  K  0.  R.  174. 

8.  Acts  from  which  such  any  agency  in  the  clerk  beyond 
what  the  law  (Rev.  Code,  chap.  31,  sec.  127,)  gives  him,  may 
be  implied,  must  be  such  as  under  the  circumstances  were 
reasonably  calculated  to  induce  the  debtor  to  believe  that  the 
clerk  was  ihe  creditor's  agent  for  the  purpose;  as  for  instance, 
that  the  creditor  had  procured  an  order  to  collect  the  money  ; 
or  had  issued  an  execution  without  instructing  the  sheriff 
what  kind  of  money  he  was  to  receive  in  payment,  &e.  And 
if,  from  such  acts  the  debtor  has  reasonably  been  led  to  believe 
that  the  clerk  was  authorized  to  receive  payment  of  a  judg- 
ment in  Confederate  money,  and  acting  on  that  belief,,  pays 
the  judgment  in  such  money,  it  is  immaterial  whether  the 
clerk  was  really  the  agent  or  not ;  the  creditor  being  estop- 
ped from  denying  the  agency,  and  the  debtor  protected  in  his 
judgment.     Ibid. 

See  (Confederate  money,  22-23-24-25.)  (Judgments — 
Satisfaction  of  judgments,  2-3-4.) 


CODE   OF  CIVIL   PROCEDURE.. 

1.  Actions  pending  at  the  adoption  of  the  CO.  P.,  are 
to  be  tried  under  the  laws  previously  existing.  Walton  v. 
McKesson,  04  N.  C.  R.  154. 

2.  The  Code  of  Civil  Procedure  is  one  Act,  aiM'  no  part  of 
it  went  into  effect  before  the  24th  of  August,  18V«ft.;  therefore 
a  suit  asking  for  an  injunction,  begun  August  22nd,  1868,. 
properly  conformed  to  the  old  practice.  Raylmjlx*.  Currhi^ 
04  N.  C.  B,  355. 


CODE,  &c— COLOR  OF  TITLE.  71 


3.  Where  a  defendant  in  a  case  at  law,  pending  at  the 
adoption  of  the  C.  C.  P.,  wishes,  subsequently  to  such  adop- 
tion, to  place  his  defence  upon  some  equitable  principle,  he 
must  resort  to  an  action,  in  the  nature  of  a  bill  in  equity,  and 
the  relief  to  be  had  thereby,  in  analogy  to  former  practice, 
must  be  agaiust  execution  in  the  suit  so  pending,  all  other 
opposition  to  the  plaintiff's  recovery  being  waived.  Johnson 
v.  Mc Arthur,  04  N.  C.  R.  675. 

4.  Therefore,  where  the  plaintiff,  in  a  civil  action,  alleged 
that  the  defendant  therein  had  previously  brought  actions, 
of  trespass  and  ejectment,  against  him,  which  were  still  pend- 
ing, and  that  the  title  sought  to  be  enforced  by  such  defen- 
dant, was  based  upon  a  deed  that  was  fraudulent  in  equity, 
and  prayed  that  such  deed  should  be  delivered  up  for  cancel- 
lation ;  and  also  moved  for  and  obtained  an  injunction  agaiust 
the  future  prosecution  of  the  previous  suits :  held,  that  the 
order  should  be  vacated,  and  the  action  dismissed.     Ibid. 

5.  By  the  effect  of  the  statute  which  suspends  the  Code  of 
Civil  Procedure,  the  proceedings  of  the  latter  as  to  docketing 
such  judgments  as  are  taken  in  the  Court  where  docketed,  are 
suspended;  and  the  18th  rule  of  practice  laid  down  by  the 
Supreme  Court  (03  N.  C,  009)  operates  to  make  all  judg- 
ments during  any  term  relate  to  the  first  day  of  such  term. 
Norwood  v.  Thorp,  04  K  C.  R.  082. 

6.  Such  relation  takes  effect  even  when  the  Judge  fails 
to  open  court  upon  the  first  day.     Ibid. 

7.  The  provision  (C.  C.  P.,  s.  390,)  that  where  the  Judge 
fails  to  appear  at  any  term  until  the  fourth  day  thereof  inclu- 
sive, the  sheriff  shall  adjourn  the  court  until  the  next  term, 
does  not  avoid  the  acts  of  any  term  where,  upon  the  non- 
appearance of  the  Judge,  the  sheriff  did  not  in  fact  adjourn 
the  court,  and  the  Judge  afterwards,  (here,  in  the  second 
week)  actually  appeared  and  held  court.     Ibid. 

8.  The  rules  of  pleading  at  common  law,  in  regard  to 
materiality,  certainty,  prolixity,  obscurity  &c,  prevail  un- 
der the  Code  of  Civil  Procedure.  Crump  v.  Mims,  04 
K  C.  R.  707. 

See  (Constitution  41,  42.) 


COLOR    OF    TITLE. 

1.     A  paper  writing  purporting  to  be  a  will,  proved  before 
the  proper  tribunal,  in  1810,  by  the  oath  of  one  witness,  is 


72     COLOR  OF  TITLE.— COMMON  CARRIERS. 

color  of  title  for  tbe  lands  disposed  of  therein.     McConnell  v.. 
McDonnell,  64  N.  C.  R.  342. 

2.     (A  sketch  given  of  the  history  of  the  doctrine  of  color 
of  title  in  this  State.)     Ibid. 


COMMON    CARRIERS. 

1.  It  is  the  duty  of  a  Railroad  Company  to  deliver  articles 
at  the  usual  places  of  delivery.  Therefore,  where  a  hogs- 
head ot  molasses,  instead  of  being  landed  on  a  platform  the 
usual  place  for  heavy  articles,  was  lost  in  an  attempt  to 
deliver  it  to  the  plaintiff  at  an  unusual  and  an  unfit  place, 
the  company  was  held  responsible.  Benbow  v.  Railroad  Co  , 
Phil.  L.  R.  421. 

2.  Where  a  Carrier,  upon  being  applied  to  by  the  owner 
to  deliver  certain  cotton,  (then  at  its  depot,  and  in  its  posses- 
sion for  transportation)  to  another  Railroad  Company,  de- 
clined to  do  it,  or  to  allow  the  owner  to  do  it — promising  to 
deliver  it  itself,  within  three  days:  held,  that  it  was  gross 
negligence  for  such  carrier  to  allow  the  cotton  to  remain  un- 
delivered for  several  months  afterwards  and  until  it  became 
rotten  by  exposure  to  the  weather.  Glenn  v.  C.  &  S.  (/.  R. 
R.  Co.,  03  N.  0.  R.  510. 

3.  Semble,  That  a  Common  Carrier  for  hire,  can  protect 
himself  by  an  express  contract,  to  such  an  extent  only  as  will 
render  his  liability  no  greater  than  that  of  a  Special  Carrier 
for  hire ;  also,  that  to  lender  a  parol  contract  to  that  effect 
binding  upon  the  other  party,  there  should  be  a  consideration. 
therefor;  and  that  otherwise  it  would  be  nudum  pactum. 
Ibid, 

4.  Although  a  common  earlier  cannot  by  a  general  notice 
to  such  effect,  free  itself  from  all  liability  for  property  by  it 
transported  ;  yet  by  notice  brought  to  the  knowledge  of  the 
owner,  it  may  reasonably  qualify  its  liability;  and  by  a  special 
contract  with  him,  it  may  relieve  itself  from  its  peculiar 
liability  as  common  carrier,  and  in  such  case  it  will  remain 
liable  for  want  of  ordinary  care,  i.  e.,  f,r  negligence.  Smith 
Sc  Melton  v.  The  N.  C.  R.  R.  Co.,  64  N.  0.  R.  235. 

5.  Where  a  special  contract  exists,  the  burden  of  proof  in 
regard  to  negligence  is  upon  the  plaintiff.     Ibid. 

0.  Where  the  facts  are  agreed  upon,  or  otherwise  appear, 
the  question  of  negligence  is  one  for  the  court;  where  such 
facts  are  in  dispute,  it  is  proper  for  the  court  to  explain  the 


COMMON  CARRIERS.  73 

rule  as  to  negligence,  upon  any  particular  hypothesis  as  to 
the  facts,  and  leave  the  application  to  the  jury.     Ibid. 

7.  Where  a  railroad  company,  being  unprovided  with  the 
means  of  arresting  sparks  ("  spark-arresters,")  gave  notice 
that  it  would  transport  cotton  at  half  rates,  in  case  it  were 
relieved  from  risk  as  to  fire,  and  thereupon  an  agent  of  the 
owner,  (who  besides,  had  a  special  understanding  with  the 
company  to  the  same  effect  as  regards  tire  risk,)  shipped 
cotton  upon  the  road  at  half  rates :  held,  that  bare  proof  of 
destruction  by  tire  whilst  being  transported  by  the  company, 
would  not  entitle  the  owner  to  recover  damages  for  such  loss. 
Ibid. 

8.  When  goods  are  shipped  to  a  consignee,  over  a  railway, 
the  shipper  cannot,  by  notice  to  the  carrier,  compel  him  to 
stop  the  goods  at  an  intermediate  point.  Pinnix  v.  Charlotte 
&  Columbia  R.  R.  Co.,  66  N.  C.  R.  34. 

0.  Whether  an  agent  of  such  carrier  may  not  bind  his 
principal  by  au  express  contract  to  hold  the  goods  quere,  but 
such  contract  must,  at  least,  be  an  express  one.     Ibid. 

10.  Where  tobacco  was  shipped  from  Thomasville,  via 
Charlotte  and  consigned  to  a  party  in  Columbia,  and  was  sent 
oft  from  Charlotte  by  rail  to  Columbia  according  to  the  bill 
of  lading,  and  the  tobacco  was  received  by  the  consignee  in 
Columbia,  but  no  express  contract  to  hold  at  Charlotte  was 
shown,  the  measure  o:  the  shipper's  damages  is  the  cost  to 
send  it  back,  or  what  it  would  have  cost  to  send  it  back,  and 
compensation  for  the  delay.     Ibid. 

11.  The  receipt  of  the  tobacco  by  the  consignee,  and 
having  it  stored,  was  not  a  waiver  of  the  liability  of  the  de- 
fendant, for  sending  it  without  orders,  for  the  plaintiffs  were 
not  obliged  to  give  up  their  tobacco  by  refusing  to  receive  it 
at  Columbia,  and  charge  the  whole  value  to  the  defendant, 
nor  were  they  obliged  to  send  it  back  and  charge  the  defend- 
ant with  the  expense  and  delay ;  they  had  their  election  to 
receive  the  tobacco,  keep  it  in  Columbia  and  charge  the  de- 
fendant with  what  it  would  have  cost  to  put  the  tobacco  back 
in  the  place  from  which  it  was  wrongfully  sent.     Ibid. 

12.  The  shipment  of  tobacco  from  Charlotte  to  Columbia, 
on  the  4th  day  of  February,  1805,  cannot  be  deemed  the 
proximate  cause  of  its  loss  by  the  burning  of  Columbia  by 
Gen.  Sherman,  on  the  17th  of  the  same  montn.     Ibid. 

13.  The  policy  of  the  law  requires  common  carriers  to  use 
a  high  degree  of  care,  in  transporting  passengers,  to  guard 
against  probable  injury.  Lambeth  v.  North  Carolina  B.  R* 
Co.,  66  ST.  C  R   494. 


74  COMMON  CARRIERS. 

14.  It  is  their  duty  to  transport  and  place  their  passen- 
gers safely  at  the  point  of  destination,  and  if  injury  to  the 
passenger  ensues  from  a  failure  to  observe  due  care,  the  car- 
rier is  prima  facie  responsible.     Ibid. 

15.  Where  a  passenger  jumped  off  of  a  railroad  train, 
while  running  at  a  speed  of  from  two  to  four  miles  an  hour, 
and  this  was  the  proximate  cause  of  the  injury  complained 
of,  and  contributory  negligence  is  alleged,  the  true  criterion 
of  the  care  required  from  the  passenger  is  that  degree  which 
may  have  been  reasonably  expected  from  a  sensible  person  in 
such  situation.     Ibid. 

10.  A  passenger  on  a  railroad  train  had  a  right  to  expect 
that  the  carrier  had  employed  a  skillful  and  prudent  conduc- 
tor, who  had  experience  and  knowledge  in  his  business  suffi- 
cient to  correctly  advise  and  direct  him  as  to  the  proper  time 
and  manner  of  alighting  from  the  train.     Ibid. 

17.  Where,  when  the  usual'signal  was  given  for  slacken- 
ing the  speed  of  the  train,  the  conductor  went  with  a  pas- 
senger and  his  companion  out  on  the  platform  to  assist  them 
in  getting  oft  safely,  and  such  passenger,  without  any  direc- 
tions from  the  conductor,  voluntarily  increased  danger  by 
jumping  off  the  train  while  in  motion,   the  carrier  is  not 

responsible  for  an  injury  resulting  therefrom;  but  if  the 
motion  of  the  train  was  so  slow  that  the  danger  of  jumping 
off  would  not  be  apparent  to  a  reasonable  persou,  and  the 
passenger  acted  under  instructions  of  the  conductor,  then  the 
defence  of  contributory  negligence  would  be  unavailing. 
I  bid. 

18.  Where  there  was  evidence  tending  to  prove  that  the 
intestate  of  the  plaintiff  informed  the  conductor  that  he 
wished  to  get  off  at  a  certain  point,  and  on  approaching  the 
place,  the  conductor  went  with  him  and  another,  upon  the 
platform  of  a  rear-car,  and  the  intestate  got  upon  the  step  of 
the  platform,  preparatory  to  springing  off,  the  conductor 
cautioned  him  not  to  "jump  off  yet,"  and  when,  a  few  mo- 
ments after,  the  conductor  said  "now  is  your  time,  jump," 
and  thereupon  he  jumped  off  and  on  to  a  platform,  fell  down 
and  rolled  under  the  train  and  was  killed,  the  train  at  the 
time  going  much  slower  by  degrees  than  before  the  brakes 
were  blown  on,  the  other  passenger  alighting  immediately 
after  the  intestate,  running  along  with  the  train,  rather  than 
jumping  off  at  right  angeis,  that  he  was  not  able  to  "take 
up"  for  several  yards,  that  intestate,  when  he  jumped  off, 
had  under  his  left  arm  a  stencil-plate  about  the  size  of  an 
ordinary  barrel-head,  between  two  pieces  of  very  thin  plank, 


COMPROMISE.— CONFEDERATE  MONEY.      75 

also,  a  satchel  of  sufficient  capacity  to  bold  two  quarts,  to 
which  were  attached  light  leather  straps,  passing  around  his 
.shoulders,  and  that  intestate  also  had  a  book,  in  size,  ten 
inches  by  five,  and  plaintiff  requested  the  following  instruc- 
tions to  the  jury:  "that  if  the  jury  should  find  that  the 
defendant  did  not  stop  its  train  along  side  of  the  place  where 
the  intestate  desired  to  alight,  and  that  the  couductor,  while 
passing  such  place,  (a  platform)  and  when  the  cars  were  mov- 
ing at  from  two  to  four  miles  an  hour,  directed  the  intestate  to 
alight,  and  he  obeyed  the  direction,  he  was  justified  iu  doing 
so,  and  his  act,  iu  law,  was  not  contributory  negligence,  hin- 
dering a  recovery:"  held,  that  the  refusal  of  the  court,  to 
give  such  instructions,  was  erroneous,  and  entitled  the  plain- 
tiff to  a  venire de  novo.    Ibid. 


COMPROMISE. 

If  a  plaintiff  has,  by  his  promise  to  compromise  and  take 
less  than  the  whole  of  his  demand,  induced  any  other  creditor 
to  accept  a  composition  and  discharge  the  defendaut  from 
further  liability,  he  cannot  afterwards  enforce  his  claim,  since 
it  would  be  a  fraud  upon  that  creditor.  But  an  agreement  to 
accept  a  less  sum,  does  not  bar  a  demand  for  a  greater,  when 
there  is  no  other  consideration.  Hayes  v.  Davidson,  70  N. 
O  R.  573. 

See  (Attorney  at  Law,  11.) 


CONFEDERATE    MONEY. 

1.  A  creditor  having,  in  March,  1863,  refused  to  accept 
Confederate  or  State  notes  for  certain  debts  contracted  before 
the  late  war,  the  debtor  brought  to  him  a  bond  upon  a  third 
party  for  the  amount,  payable  to  the  creditor,  and  he  agreed 
to  take  it  iu  discharge  of  the  debt  provided  the  debtor  would 
sign  it  as  surety.  lie  did  so,  and  the  former  evidences  of 
indebtedness  were  cancelled  :  held,  that  the  debtor  became  a 
guarantor  of  the  bond,  and  was  liable  in  assumpsit  for  the 
full,  amount,  without  reference  to  the  laws  providing  for  a 
scale  of  debts  contracted  during  the  war.  Carter  v.  McGehee, 
Phil.  L.  R.  431. 

2.  The  fact  that  the  consideration  of  an  agreement  (made 


76  CONFEDERATE  MONEY. 

in  1802,)  was  Confederate  Treasury  Notes,  does  not  invali- 
date it;  contracts  upon  such  consideration  being  ratified  by 
an  ordinance  of  the  Convention,  (Ordinances  of  1805,  p.  5(1,) 
and  chs.  38  and  31)  of  the  Acts  of  Assembly  of  I860,  which 
do  not  conflict  with  the  Constitution  of  the  United  States. 
Phillips  v.  Hooker,  Phil.  Eq.  R.  193 

3.  By  Pearson,  C.  J.  In  1802  Confederate  treasury  notes 
being  the  only  circulating  medium  in  the  State,  ordinary 
dealings  in  them  were  not  accompanied  with  criminal  indent 
to  aid  the  rebellion,  and  were  therefore  not  illegal  and  void. 
This  rule  applies  to  executory  as  well  as  executed  contracts. 
Ibid. 

4.  By  Beade,  J.  A  contract  is  not  void  merely  because 
there  is  something  immoral  or  illegal  in  its  surroundings  or 
connections ;  therefore,  the  issuing  of  Confederate  treasury 
notes  was  illegal,  but  the  use  of  them  after  they  were  issued^ 
was  not  illegal      Ibid. 

5.  A  payment  in  Confederate  treasury  notes  to  a  Clerk 
and  Master,  in  December,  1803,  of  the  amount  of  a  bond 
given  upon  a  sale  of  land  for  partition,  does  not  discharge 
the  bond;  but  the  obligor  is  entitled  to  a  credit  for  the  value 
of  the  notes  at  the  time  of  payment,  and  the  Clerk  and 
Master  is  chargeable  with  such  value.  Emerson  v.  Mallett., 
Phil.  Eq.  R  234. 

0.  An  officer  with  authority  to  collect,  and  without 
instructions  to  the  contrary,  might  before  the  year  1863  pro- 
perly receive  Confederate  notes  in  payment  of  debts  con- 
tracted before  the  war.  No  rale  can  be  laid  down  with 
reference  to  the  collection  of  such  debts  during  that  year., 
but  after  1803,  he  was  not  justifiable  in  receiving  Confederate 
notes.     Ibid. 

7.  Contracts  the  considerrtion  of  which  was  Confederate 
money,  are  not  therefore  illegal.  Turleij  v.  iVowell,  Phil. 
Eq.  li  301. 

8.  Guardians  and  other  trustees,  who  had  in  their  hands 
for  management,  during  the  late  war,  funds  belonging  to  in- 
fants or  other  cestui/  que  trusts,  were  bound  to  use  for  such 
persons  only  that  care  which  prudent  men  exercise  in  relation 
to  their  own  affairs.     Cummings  v.  Mebanc,  03  N.  C.  R.  315. 

9.  It  was  not  imprudent  for  a  guardian  to  receive  Con- 
federate money  in  December,  18(52,  from  a  debtor  of  his  ward, 
who  tendered  it  upon  his  being  about  to  leave  the  State;  but 
if  such  guardian  mixed  the  money  so  received  with  his  own, 
and  both  amounts  were  lost  at  the  expiration  of  the  war,  he 
will  be  responsible  to  his  ward  for  its  value  in  the  present, 
currency,  with  iuterest  from  the  time  of  receiving.     Ibid. 


CONFEDERATE  MONEY.  77 

10.  A  trustee  will  not  be  permitted,  to  tbe  injury  of  a 
cestuy  que  trust,  to  substitute  bis  own  Confederate  money, 
when  greatly  depreciated,  for  more  valuable  trust  funds. 
Capehart  v.  Etheridge,  63  N.  C.  R.  353. 

11.  Tbe  rule  of  diligence  imposed  upon  executors  and  oth- 
ers having  trust  funds  in  their  bauds  during  the  hue  war, — as 
regards  dealing  in  Confederate  money,  is,  that  of  a  prudent 
man  in  managing  his  own  affairs.  Shipp  v.  Hettrick,  03  N. 
C.  R.  329. 

12.  Although  one  acting  as  trustee,  may  not  in  a  parti- 
cular case  have  made  himself  responsible  by  receiving  in  18G2 
or  1803  Confederate  money  for  his  cestuy-que-trust,  yet  if  he 
do  not  invest  it  when  received,  or  at  least  do  not  make  a  spe- 
cial deposit  of  it,  or  keep  the  identical  money  separated  from 
all  other,  he  will  be  held  liable  for  the  value  of  what  he  re- 
ceived, with  interest.     Ibid. 

13.  A  Sheriff  who  has  been  instructed  by  the  plaintiff"  to 
receive  upon  an  execution  "cash  in  bank  bills  of  the  State, 
or  specie,7'  received  upon  it  its  amount  in  Confederate  cur- 
rency, and  endorsed  "satisfied:11  upon  returning  it  to  the 
Clerk  his  attention  was  drawn  to  the  instructions  upon  the 
writ,  and  thereupon  he  withdrew  it,  erased  "  satisfied,"  and 
entered  "Received,  August  30th,  1804,  the  amount  of  this 
execution  in  Confederate  currency  notes,  which  plaintiff  re- 
fused to  accept:"  held,  that  the  judgment  was  not  discharg- 
ed; and  therefore,  that  the  defendant  bad  no  right  at  a  sub- 
sequent term  to  move  that  alias  writs  of  execution  which  had 
been  issued,  should  be  set  aside.  McKay  v.  timitherman, 
04  N*.  C  R.  47. 

14.  An  execution  can  be  satisfied  only  by  a  seizure  aud 
sale  of  property  ;  or  by  payment  in  coin,  or  in  such  currency 
as  the  plaintiff  gives  the  officer  express  or  implied  authority 
to  receive.     Ibid. 

15.  In  ordinary  dealings  during  the  late  war  without 
design  to  aid  the  rebellion,  Confederate  treasury  notes  were  a 
sufficient  consideration  to  support  a  contract.  Kingsbury  v. 
Lyon.  04  X.  C.  R.  128. 

10.  Whether  an  administrator  is  blamable  for  selling 
property  at  a  time  when  he  could  only  obtain  for  it  Confed- 
erate money,  {here,  November,  1803,)  depends  upon  circum- 
stances, viz  :  the  sort  of  property  sold,  whether  perishable  or 
other — the  unwillingness  of  the  creditors,  &c,  to  receive  such 
currency,  and  the  like.      Kerns  v.   Wallace,  04  N.  C.  R.  187. 

1  7.  It  is  not  true,  as  a  general  proposition,  that  a  mere 
sale  at  such  a  time   imports  negligence  ;  therefore,  where  the 


78  CONFEDERATE  MONEY. 

case  showed  do  circumstances  indicating  negligence :  hcld7 
that,  as  the  presumption  was  in  favor  of  innocence  the  admin- 
istrator was  not  ehargahle  with  the  consequent  loss.     1  bid. 

18.  Where  executors  collected  the  funds  of  an  estate  in 
Confederate  money,  in  1,861,  1862  and  up  to  February,  1803, 
f  >r  the  next  of  kin  living  in  Tennessee,  and  the  latter  received 
such  money  without  objection  until,  in  the  process  of  the  war, 
communication  was  cut  off;  and  thereupon  the  executors 
invested  it  in  Confederate  certificates,  State  Treasury  notes, 
and  other  securities — all  of  which  failed  by  the  results  of  the 
war:  held,  that  they  had  exhibited  ordinary  care  in  this  res- 
pect, and  were  not  responsible  for  the  loss.  Cobb  v.  Taylor* 
64  N.  C.  R.  193. 

19.  A  note  given  for  land  sold  in  November,  1864,  upon 
credit,  with  the  understanding  at  the  time  of  said  sale  that 
payment  would  be  required  in  "-undepreciated  money,"  does 
not  mean  specie,  or  its  equivalent.  Blackburn  v.  Brocks,  65 
N.  C.  It.  413 

20.  The  time  and  circumstances  under  which  said  note 
was  given  are  to  be  considered  in  ascertaining  the  intention 
of  the  parties,  and  these  things,  together  with  the  conditions 
of  sale,  indicate  that  payment  was  to  be  made  in  money 
receivable  in  the  ordinary  commercial  and  business  trans- 
actions of  the  country.     1  bid. 

21.  Before  entering  the  Confederate  service,  A  placed  in 
the  hands  of  B  Confederate  currency  to  be  applied  to  the 
support  of  A's  family.  The  latter  died  in  December,  1862, 
when  B  administered  upon  his  estate,  paid  off  the  debts  of 
his  estate,  and  retained  in  kind  the  money  deposited  with  him 
by  A:  held,  that  B  was  not  liable  for  the  value  of  said  cur- 
rency.    Hagans  v.  HuffsteUer,  65  N.  C.  R.  443. 

22.  The  receipt  by  a  Clerk  of  the  Superior  Court  of  Con- 
federate money  in  satisfaction  of  a  docketed  execution  from 
this  Court,  in  pursuance  of  the  provision  of  the  Rev.  Code, 
ch.  33,  see.  6,  after  such  money  became  depreciated  (April, 
1862,)  in  contravention  of  the  directions  of  the  plaintiff, 
amounts  to  a  satisfaction  of  the  execution  to  the  extent  of 
the  value  of  the  Confederate  money  in  gold,  to  be  ascertained 
by  the  legislative  scale  of  the  date  of  such  payment,  and  the 
clerk  is  liable  on  his  bond  to  the  same  extent.  Greenlee  v. 
Sudderth,  6o  N.  0.  R  470 

23  ins  ich  case  the  plaintiff  may  elect  to  repudiate  the 
action  of  the  clerk,  and  recover  the  whole  amount  due  in  the 
execution  from  the  defendant  therein,  or  may  ratify  his 
action,  and  demand  of  him  the  amount  of  the  gold  value  of 


CONFEDERATE  MONEY.  79 

the  Confederate  money  so  received,  and  recover  the  balance 
of  his  execution  from  the  defendant  therein  :  aliter,  had  the 
payment  been  made  to  the  plaintiff     Ibid. 

24.  A  ratification  of  the  action  of  the  clerk,  beyond  the 
extent  of  the  value  of  the  money,  will  not  be  presumed  by 
reason  of  his  demanding  in  his  complaint  judgment  fur  the 
whole  amount  of  the  execution.     Ibid. 

25.  As  the  clerk's  liability  arises  from  his  agency  as  above 
stated,  he  is  not  liable  for  interest  until  a  demand,  and  in 
the  absence  of  any  evidence  of  demand  in  this  case,  the 
defendants  are  liable  for  interest,  only  from  the  commence- 
ment of  the  action.     Ibid. 

2(3.  Where  the  defendants  in  an  action  of  debt  upon  a 
promisory  note,  given  in  18(52,  proposed  to  prove  that  the 
consideration  of  the  note  was  Confederate  money,  and  that 
fact  was  admitted  by  the  plaintiff  in  the  action  :  held,  that 
such  evidence  was  immaterial.  Terrell  v.  Walker,  66 
R  C.  R.  244. 

27.  Under  the  ordinance  of  1865,  and  the  act  of  1866-7, 
a  party  to  an  action  has  a  righ",  to  show  that  the  consideration 
of  the  note  sued  on,  was  property,  and  the  value  of  the 
property;  and  when  money  was  borrowed,  to  rebut  the  pre- 
sumption of  the  law,  by  proving  that  it  was  not  to  be  paid  in 
Confederate  currency,  but  iu  some  other  money  or  article. 
Ibid. 

28.  Evidence  cannot  be  introduced  to  contradict  or  vary 
a  written  contract,  except  in  the  case  authorized  by  the  act 
of  18G'6-'67.  The  general  rule  of  evidence  in  reference  to 
such  contracts,  being  still  in  force,  with  the  exceptions  stated. 
Ibid. 

29.  Where  a  note  was  given  in  1863,  payable  two  years 
after  date,  and  to  be  paid  in  the  current  funds  of  the  country 
when  due  :  held,  that  the  Act  of  1866-67,  which  raises  the 
presumption  that  all  contracts  to  pay  money,  made  during 
the  war,  were  intended  to  be  payable  in  Confederate  money, 
cannot  apply  where  the  writing  itself  shows  a  different  iutent. 
When  the  contract  is  to  pay  so  many  dollars,  evidence  may 
be  received  to  show  that  the  real  agreement  was  to  pay  in 
some  other  money  than  Confederate  currency.  McKesson  v. 
Jones,  66  N.  C.  R.  458. 

30.  The  Act  of  the  General  Assembly  of  1866-'67,  en- 
titled "an  act  relating  to  debts  contracted  during  the  war," 
and  allowing  either  party  to  show  on  the  trial,  the  considera- 
tion of  the  contract,  and  the  jury  in  making  up  their  verdict, 
to  take  the  same  into  consideration,  is  not  unconstitutional. 


80  CONFEDERATE  MONEY. 

Therefore,  it  was  not  erroneous,  in  a  Judge  to  instruct  a  jury, 
that  in  making  up  their  verdict,  they  might  consider  the 
value  of  the  article  sold,  notwithstanding  there  was  an  agree- 
ment that  the  price  should  be  paid  in  confederate  currency. 
King  v.  W.  dt  W.  It.  B.  Co.,  00  N.  C.  11.  277. 

31.  A  collecting  officer  or  agent,  without  instructions  to 
the  contrary,  is  authorized  to  receive,  in  payment  of  such 
debts  as  he  may  have  to  collect,  whatever  kind  of  currency  is 
received  by  prudent  business  men  for  similar  purposes,  and 
whatever  an  officer  is  authorized  to  receive,  a  debtor  is  author- 
ized to  pay.     Baircl  v.  Hall,  07  N.  G.  K.  237. 

32.  When,  therefore,  a  Clerk  and  Master,  in  the  year 
1803,  received  Confederate  currency  in  payment  of  the 
purchase  money,  due  for  lands  sold  in  1848,  it  is  to  be  deter- 
mined upon  the  principle  above  stated,  whether  the  money 
should  have  been  taken  or  not.  If  not,  the  master  is  respon- 
sible for  the  value  ol  the  currency,  and  the  purchaser  entitled 
to  a  credit  pro  tanto,  and  in  a  proceeding  against  him,  to 
collect  the  money  or  re-sell  the  land,  the  master  should  be 
made  a  party.     Ibid. 

33.  Where  instructions  are  given,  or  the  parties  interested 
assent  to  the  payment  of  Confederate  money  to  the  Master, 
he  and  the  purchaser  are  released  from  any  liability  therefor. 
Ibid, 

34.  When  the  widow  and  heirs  at  law  unite  in  a  petition 
to  sell  the  lauds  descended,  she  electing  to  take  the  value  of 
her  dower  in  money,  and  she  becomes  the  purchaser  and  re- 
sells to  a  third  pcson:  it  was  held,  that  in  a  proceeding 
against  the  second  purchaser  to  collect  the  money  or  re-sell 
the  land,  he  is  entitled  to  a  credit  for  the  value  of  the  dower, 
and  likewise  for  the  value  of  the  shares  of  any  one  or  more 
of  the  heirs  at  law  who  were  capable  of  assenting,  and  did 
assent  to  payment  in  Confederate  currency.     Ibid. 

35.  Confederate  treasury  notes  were  issued  by  that  gov- 
ernment with  the  intent  that  they  should  circulate  as  money, 
and  praticahy,  both  by  banks  and  individuals,  they  were 
deemed  and  treated  in  all  ordinary  business  as  money. 
Wootcn  v.  Sherrard  et  al ,  08.  N.  C.  R.  334. 

30.  Whether  a  Sheriff  is  authorized,  when  not  instructed 
to  the  contrary  by  plaintiff,  to  receive  and  defendant  to  pay 
Confederate  treasury  notes  in  payment  of  an  execution, 
depewds  upon  the  fact,  whether  at  that  time  in  that  county 
prudent  business  men  were  taking  such  Confederate  notes  in 
payment  of  similar  debts.  Uttey,  Guard'n  v.  Young  et  al  > 
68  N.  C.  E.  307. 


CONFEDERATE  MONEY.— CONSTABLES.      8L 

37.  The  value  of  a  promisory  note,  dated  March,  1863, 
payable  on  demand,  is  the  sum  due  upon  applying  the  Legis- 
lative scale  at  the  time  the  note  was  made,  and  not  when 
payment  was  demanded.     State  v.  Coivles,  70  N.  0-  R.  124. 

38.  In  August,  1802,  Confederate  notes  constituted  the 
■currency  of  the  country.  And  a  Clerk  and  Master,  acting 
under  an  order  of  the  court  to  collect,  is  protected  in  receiv- 
ing such  money  in  payment  of  notes  given  for  the  purchase 
of  laud;  and  although  lie  had  no  authority  to  invest  the 
money  and  would  have  been  liable  for  any  loss  arising  from 
such  investment,  still,  having  invested  the  same  in  good  faith 
in  Confederate  bonds  equally  as  good  as  the  currency  itself, 
he_  cannot  be  held  responsible  for  their  loss,  occurring  by  the 
results  of  the  war.     Mabnj  v.  Englekard,  78  N.  0,  11.  377. 

39.  The  value  of  a  note,  payable  on  the  1st  day  of  Jan- 
uary, 1800,  in  Confederate  money,  given  for  the  hire  of  slaves 
for  the  year  1805,  is  the  value  of  such  hire  for  the  term  of 
hiring,  although  the  slaves  were  emancipated  during  the 
time.  Such  contract  bears  interest  from  1st  day  of  January, 
1800.     Dowd  v.  North  Carolina  E,  R.  Co.,  70  N.  C.  R.  408. 

See  (Guardian  and  Ward — Powers,  Duties  and  Liabili- 
ties of  Guardians,  1,  3,  0,  12,  13,  14,  19,  21  25,  35,  37,  42, 
60,63)  (Partnership,  22,  23.;  (Payment,  1.)  (Trust  and 
Trustees,  7,  8, 10.) 


CONSTABLES. 

1.  A  constable  in  whose  hands  a  claim  was  placed  for  col- 
lection on  the  16th  March,  1861,  who  took  no  steps  to  collect 
till  January,  1863,  when  he  collected  in  Confederate  currency, 
is  responsible  after  a  demand  in  1866,  for  the  full  amount  of 
the  claim,  notwithstanding  the  stay  laws  of  May  aud  Sep- 
tember, 1861.     Lipscomb  v.  Cheek,  Phil.  L.  R.  332. 

2.  A  constable  does  not  subject  himself  to  the  penalty  of 
$100  given  by  the  Rev.  Code,  ch.  34,  s.  118,  by  declining  to 
receive  process  which  at  the  time  it  urns  tendered  he  could  not 
have  executed  ;  ex  gr.  process  against  a  person  theu  attend- 
ing under  subpoena  before  a  commissioner.  Fentress  v. 
Brown,  Phil.  L.  R.  373. 

3.  No  action  will  lie  against  a  constable  for  money  re- 
ceived by  him  in  his  official  character,  until  after  a  demand. 
Kicett  v.  Massey,  63  N.  C.  R  240. 

4.  Where  a  person  gave  bond  as  Constable  in  February, 

6 


82  CONSTABLES.— CONSTITUTION. 

1856,  and  also  in  February,  1857,  and  received  claims  for  col- 
lection in  April,  June  and  July,  1856:  held,  if  the  claims  were 
collected  in  1856,  that  suit  should  have  been  brought  upon 
said  bond,  and  that' it  was  incumbent  upon  the  relator  of  the 
plaintiff  to  prove  that  the  claims  were  not  collected  in  1856, 
and  were  in  the  Constable's  hands  after  the  date  of  the  bond 
sued  on.     Taylor  v.  Galbraith,  65  N.  C  R.  409. 

5.  The  statute  of  limitation  on  a  Constable's  bond  is  sus- 
pended from  20th  May,  1861,  to  January  1st,  1870.     Ibid. 

See  (Jurisdiction — Of  Justices  in  civil  cases,  9.)  (Office 
and  officer,  17.) 


CONSTITUTION. 

1.  The  tax  imposed  upon  "  dead  heads "  by  the  act  of 
1860-'61,  ch.  31,  sec.  12,  is  valid.  Gardner  v.  Hall,  Phil.  L. 
R.  21. 

2.  Such  a  tax  is  not  a  "  capitation  tax,"  within  the  mean- 
ing of  sec.  3,  art.  4,  State  Constitution,  (Amendments  of 
1836);  nor  is  it  a  violation  of  the  charter  of  the  Wilmington; 
&  Charlotte  Railroad  Company.     Ibid. 

3.  A  question  having  been  made  in  the  Superior  Court 
as  to  the  constitutionality  of  an  act  which  gave  defendants 
further  time  to  plead  :  held,  that  inasmuch  as  the  statute 
had  been  repealed  before  judgment  was  pronounced  in  this 
court,  (especially,  as  the  appeal  had  already  given  the  defen- 
dant all  the  delay  that  he  asked,)  the  court  would  not  enter- 
tain the  queslion  merely  for  the  purpose  of  settling  the  inci- 
dental question  of  costs.  Burbank  v.  Williams,  Phil-  L. 
R.  37. 

4.  The  provisions  in  the  State  Constitution  for  the  call  of 
a  Convention  do  not  profess  to  extend  to  every  case  in  which 
such  a  call  mav  be  required.  In  the  matter  of  Hughes,  Phil. 
L.  R.  58. 

5.  The  anarchy  in  North  Carolina  resulting  from  the 
close  of  the  late  war,  having  for  the  time  annulled  the  provi- 
sions under  the  State  Constitution  for  such  a  call,  it  was- 
competent  and  proper  for  the  United  States  to  afford  to  the 
people  an  opportunity  of  electing  delegates  to  a  Convention. 
Ibid. 

6.  The  delegates  thus  assembled  composed  a  rightful 
Convention  of  the  people.     Ibid. 

7.  The  authority  of  that  Convention  is  not  affected  by 


CONSTITUTION.  83 

the  fact  that  some  of  the  citizens  of  the  State,  not  having 
been  then  pardoned,  were  not  permitted  to  vote  at  the  elec- 
tion.    Ibid. 

8.  The  elections  had  and  the  officers  chosen  by  virtue  of 
the  ordinances  of  that  Convention,  are  such  cle  jure.     Ibid. 

9.  A  retrospective  law  taxing  the  business  of  citizens 
during  the  whole  of  the  current  year  in  which  such  law  is 
passed,  is  not  unconstitutional.     State  v.  Bell,  Phil.  L.  R.  75. 

10.  A  law  punishing  a  prospective  refusal  to  render  for 
taxation  an  account  of  business  done  before  the  passage  of 
the  law,  is  not  ex  post  facto.     Ibid. 

11.  It  was  competent  for  the  State  in  October,  1865,  to 
pass  a  law  taxing  busiuess  done  at  any  time  during  that  year 
at  any  place  within  its  boundaries,  even  although  within  what 
were  called  "the  Federal  lines,"  and  at  places  where  there 
were  then  no  civil  officers.     Ibid. 

12.  The  functions  of  a  court  in  respect  to  statutes  are  but 
two:  1st,  to  ascertain  their  meaning:  and,  2,  to  decide  upon 
their  constitutionality.     Ibid 

13.  Persons  licensed  under  the  revenue  laws  of  the  United 
States,  are  not  thereby  "officers"  of  the  United  States,  or 
withdrawn  from  the  operation  of  the  taxing  powers  of  a  State. 
Jbid. 

14.  It  is  not  a  ground  for  arrest  of  judgment,  that  the  de- 
fendant was  convicted  upon  an  indictment  found  by  a  grand 
jury  in  1803,  while  the  rightful  State  government  was  sus- 
pended.    State  v.  Sears,  Phil.  L.  R.  14(3. 

15.  An  indictment  is  a  judicial  proceeding  within  the 
meaning  of  the  Ordinance  of  the  Convention  of  1865,  entitled 
"An  Ordinance  declaring  what  laws  and  ordinances  ^are  in 
force,"  &c.     Ibid 

10.  The  Convention  in  adopting  that  ordinance  did  not 
exceed  its  powers;  nor  is  the  ordinance  in  the  nature  of  an 
ex  post  facto  law.     Ibid. 

17.  The  provisions  of  the  ordinance  of  October,  1865,  in 
regard  to  the  value  of  certain  executory  contracts  "  solvable 
in  money,"  do  not  conflict  with  the  Constitution  of  the  Uni- 
ted States.     Woodfin  v.  Sluder,  Phil.  L  E.  200. 

18.  The  clause  of  the  Ordinance  of  the  Convention  of 
June,  1866,  entitled  "An  Ordinance  to  change  the  jurisdic- 
tion of  the  courts,"  &c,  which  provided  that  no  scire  facias 
should  be  thereafter  issued  to  revive  dormant  judgments,  and 
that  every  scire  facias  then  pending  should  be  dismissed  at 
defendants'  cost,  is  not  unconstitutional.  Parker  v.  Shannon- 
house,  Phil.  L.  K.  209. 


84  CONSTITUTION. 

19.  All  retroactive  legislation  is  not  unconstitutional. 
Hinton  v.  Hinton,  Phil.  L  R  410. 

20.  Retroactive  legislation  is  competent  to  affect  reme- 
dies, but  not  to  affect  lights.     Ibid. 

21.  The  act  of  February,  1SGG,  giving  widows  further 
time  for  dissenting,  is  constitutional,  and  applies  to  a  case  in 
which  at  its  passage  the  widow  was  barred  under  the  act  of 
1784.     Ibid. 

22.  By  the  Court  (Pearson,  C.  J.,  Hodman,  J.,  and  Dick, 
J '.f  concurring.)  It  is  competent  for  a  tax-payer  to  file  a 
complaint  on  behalf  of  himself  and  all  other  tax-payers  in 
the  State,  whereby  to  enjoin  the  issue  of  State  Bonds  under 
an  unconstitutional  Act  of  Assembly.  Galloway  v.  Chatham 
B.  R.  Co.,  63  K  C.  R.  147. 

23.  The  Act  of  the  18th  of  December,  18G8,  in  requiring 
the  Treasurer  of  the  State  to  subscribe  for  stock  in  the 
Chatham  Railroad  Company,  and  to  pay  for  the  same  by 
Issuing  Bonds  of  the  State,  is  unconstitutional,  under  art.  5, 
sec,  5,  clause  2,  of  the  Constitution  of  the  State.     Ibid. 

24.  That  clause  adds  to  the  restrictions  in  the  former 
clause  of  the  same  section,  peculiar  restrictions  of  its  own  in 
the  cases  covered  by  it.     Ibid. 

25.  A  subscription  for  stock  in  a  corporation  and  issuing 
bonds  to  pay  for  such  stock,  is  a  gift  of  the  credit  of  the 
State,  within  the  meaning  of  Art.  5,  sec.  5,  clause  2,  above. 
Ibid. 

20.  Per  Rodman,  J.  Even  if  the  bonds  of  the  State  were 
at  par,  the  General  Assembly  could  not  give  or  lend  its 
credit  without  submitting  the  question  to  the  people.    Ibid. 

27.  Also,  the  test  of  bonds  being  at  par  is,  whenever  ki 
the  particular  transaction  the  State  receives  in  legal  money 
the  sum  which  she  becomes  liable  to  pay.     Ibid. 

28.  The  distinction  between  officers  and  placemen,  is,  that 
the  former  are  required  to  take  an  oath  to  support  the  Con- 
stitutions of  the  State  and  of  the  United  States ;  whilst  the 
latter  are  not.     Worthy  v.  Barrett,  63  N.  O  R.  199. 

29.  All  officers  under  the  government  of  the  United 
States  are  either  Legislative,  Executive  or  Judicial  officers. 
Ibid. 

30.  Sheriffs,  County  Solicitors  and  other  officers  required 
to  take  an  oath  to  support  the  Constitution  of  the  United 
States  by  the  laws  of  this  State  [Rev.  Code,  ch.  "  Oaths," 
&c.,]  are  within  the  operation  of  Article  XIV  of  the  Amend- 
mendments  to  the  Constitution  of  the  United  States,  dis- 
qualifying certain  persons  from  holding  office.     Ibid, 


CONSTITUTION.  85 

31.  A  county  attorney  is  within  the  provisions  of  the 
XI  Vth  Amendment  of  the  Constitution  of  the  United  States, 
disqualifying  certain  persons  from  holding  office.  Tate,  ex- 
parte,  63  N.  C.  R.  308. 

32.  The  Acts  of  January  30th,  18G9,  and  April  1st,  1869, 
in  regard  to  "  the  University  Railroad  Company  "  are  invalid  ; 
because — by  Pearson,  C.  J.,  Reade,  Dick  and  Settle,  J  J.,  no 
corporation  is  created  thereby,  and  therefore  there  is  no 
grantee  to  take  the  franchises  specified.  University  R.  R 
Co.  v.  Holden,  63  N.  C.  R.  410. 

33.  By  Pearson,  C.  J.,  and  Rodman  and  Dick,  J  J.  The 
question  involved  therein  of  an  expenditure  by  the  State,  has 
not  been  decided  by  a  vote  of  the  people.     1  bid. 

34.  By  Pearson,  C  J.,  The  proportions  and  limitations 
upon  taxation,  required  by  Art  5,  Sec.  1,  of  the  State  Con- 
stitution, have  not  been  observed.     Ibid 

35.  By  Rodman  and  Did;  J  J.,  Conceding  that  an  inchoate 
corporation  is  created  by  the  acts  in  question,  the  "Direc- 
tors" required  for  its  consummation  have  not  as  yet  been 
duly  appointed,  inasmuch  as  to  such  appointment  the  State 
Constitution  renders  a  confirmation  bg  the  Senate,  iudispen- 
sible.     Ibid. 

36.  The  propositions  and  limitations  (ubi supra,)  do  not 
apply  to  taxes  laid  for  the  purpose  of  paying  either  the  inter- 
est or  the  principal  of  the  public  debt,  as  it  existed  at  the 
adoption  of  the  Constitution,  or  for  special  county  purposes^ 
(as  in  Art.  5,  Sec.  7,  of  the  Constitution.)     Ibid. 

37.  By  Reade,  Dick  and  Settle,  J  J.  The  proportions  and 
limitations  (ubi  supra))  apply  only  to  the  taxes  laid  for  the 
ordinary  and  current  expenses  of  the  State,  and  includes  none 
of  the  objects  of  expenditure  referred  to  in  Sees.  4  and  5,  of 
the  same  Article.     Ibid. 

38.  By  Pearson,  C.  J.  They  apply  in  all  of  State  or 
County  taxation,  except  provisions,  (1)  for  the  public  debt  as 
it  existed  when  the  Constitution  was  adopted,  (2)  for  casual 
deficits,  insurrection  and  invasion,  and  (3)  for  county  taxation 
for  special  purposes.     Ibid. 

39.  By  Rodman,  J.  They  apply  (except  in  regard  to  the 
public  debt,  as  it  existed  at  the  adoption  of  the  Constitution) 
equally  in  regard  to  all  State  taxes  whatever,  but  not  with 
equal  force  to  all ;  being,  in  some  matters,  imperative;  in 
others,  only  directory  to  the  Legislature, — whose  decision  in 
such  case  is  conclusive,  and  cannot  be  reviewed  by  the  judi- 
ciary. In  this  latter  class  are  included,  taxes,  (1.)  to  supply 
casual  deficits,  to  suppress  invasions  and  insurrections;  (2.) 


S6  CONSTITUTION. 

for  the  ordinary  and  legitimate  purposes  of  the  State,  and  (3.) 
to  construct  unfinished  railroads.     Ibid. 

40.  By  Pearson,  0  J.,  and  Rodman  and  Dick,  J  J.  (Dis- 
sentiente,  Read,  J.)  As  the  Legislature  cannot  give  or  lend 
the  credit  of  the  State  to  others  for  the  purpose  of  construct- 
ing new  Rail  Roads,  without  the  sanction  of  a  vote  of  the 
people,  so,  a  fortiori,  it  cannot  without  such  sanction,  engage 
in  such  construction  directly.     Ibid. 

41.  _  The  Act  of  March  18,  1809,  "Suspending  the  Code 
of  Civil  Procedure  in  certain  cases,"  is  not  unconstitutional 
in  requiring  writs  in  civil  cases  to  be  "returned  to  the  regu- 
lar term  of  the  Superior  Court,"  &c,  instead  of  to  the  Clerk's 
office  as  heretofore.     McAdoo  v.  Benbow,  63  N.  C.  R.  461. 

42.  The  phrase  "  Superior  Court "  in  Art.  4,  Sec  28,  of 
the  State  Constitution,  does  not  mean  the  Court  of  the  Clerk 
Ibid 

43.  A  Statute  may  be  in  part  constitutional,  and  in  part 
unconstitutional.     Johnson  v.  Winslow,  63  N.  C.  R.  552. 

44.  The  Constitutional  prohibition,  (Art.  4,  Sec.  10,)  of 
trial  of  "issues  of  fact"  by  the  Supreme  Court,  extends  to 
issues  of  fact  as  heretofore  understood,  and  does  not  hinder 
that  tribunal  from  trying,  {ex.  gr.)  such  questions  of  fact  as 
may  be  involved  in  a  consideration  of  the  propriety  of  con- 
tinuing or  vacating  an  order  for  a  provisional  injunction. 
Heilig  v.  Stokes,  63  N  C.  R.  612. 

45.  The  Constitution  of  the  United  States  does  not  forbid 
a  State  from  altering  the  rule  of  evidence  which  heretofore 
excluded  parol  evidence  offered  to  contradict  or  vary  the  terms 
of  a  written  contract.     Robeson  v.  Brown,  63  N.  C.  R.  544- 

46.  The  charter  of  a  Railroad  Company,  granted  in  1852, 
provided,  that  "  the  said  Railroad  and  all  engines,  cars  and 
machinery,  and  all  the  works  of  said  Company,  together  with 
all  profits  which  shall  accrue  from  the  same,  and  all  tbe  prop- 
erty thereof  of  every  description,  shall  be  exempt  from  any 
public  charge  or  tax  whatsoever  for  the  term  of  fifteen  years ; 
and  thereafter  the  legislature  may  impose  a  tax  not  exceeding 
twenty-five  cents  per  annum  on  each  share  of  the  capital  stock 
held  by  individuals,  whenever  the  annual  profits  shall  exceed 
eight  per  cent"  The  annual  profits  had  never  exceeded  eight 
per  cent-  :  held,  that  the  Legislature,  in  1869,  might,  not- 
withstanding, levy,  and  authorize  to  be  levied,  an  ad  valorem 
tax  not  exceeding  two-thirds  of  one  per  cent,  upon  the  fran- 
cMse,  rolling  stock  and  real  estate  of  such  Compauy.  The  B. 
&  a.  B.  B^  Co.  v.  Beid,  64  N.  0.  C  155. 

(Note  the  decision  in  this  case  and  that  of  the  W.  &  W. 


CONSTITUTION.  87 

R,  R.  Co.  v.  Reid  were  overruled  by  the  Supreme  Court  of 
the  United  States,  13  Wallace,  264-269) 

47.  Arguendo  :  All  contracts  between  the  sovereign  and 
its  citizens,  as  in  bank  and  railroad  charters,  are  made  sub- 
ject to  any  change  of  circumstances  that  future  events  may 
develope,  and  to  the  permanent  right  and  duty  of  the  State 
to  regulate  the  currency,  and  to  preserve  its  own  existence 
by  equal  taxation.     Ibid. 

48.  Regulations  of  taxation  iu  such  charters,  are,  rather, 
rough  estimates  of  what  will  be  required,  things  remaining  as 
they  are,  than  contracts  holding  in  all  events  ;  say,  even  after 
the  disasters  which  the  common  fund,  liable  to  taxation, 
suffers  by  a  great  war.     Ibid. 

49.  The  theory  that  such  regulations  are  contracts  iu  the 
ordinary  sense,  has  issued  in  refinements,  devised  in  order  to 
escape  its  results ;  such  as  the  sub-division  of  corporations, 
for  taxing  purposes,  into  franchise,  stock,  dividends,  &c, — 
an  exhaustion  of  the  chartered  restraints  upon  the  power  of 
taxation  in  one  or  more  of  which,  is  held  not  to  affect  that 
power  over  others.     Ibid. 

50.  A  charter,  granted  in  1833,  provided  that  all  the 
property  purchased  by  the  officers  of  the  company  should 
vest  iu  the  shareholders  "  iu  proportion  to  their  respective 
shares,  and  the  shares  shall  be  deemed  personal  property ; 
and  the  property  of  said  company  aud  the  shares  therein, 
shall  be  exempt  from  any  public  charge  or  tax  whatsoever :" 
held,  that  the  Legislature  might,  notwithstanding,  iu  1869, 
levy  an  ad  valorem  tax  upon  the  franchise.  W.  &  W.  R. 
Co.  v.  Reid,  64  N.  C.  E.  226. 

51.  The  act  of  1868-'69,  ch.  102,  "  To  authorize  the 
Commissioners  of  Rockingham  county  to  levy  a  special  tax," 
&c,  is  constitutional.     Broadnax  v.  Groom,  64  N.  C.  R.  244. 

52.  By  comparing  the  act  of  1864-'65,  ch.  32,  with  that 
of  1868-'69,  ch.  74,  sec.  20,  as  well  as  from  the  principle 
involved  therein, — injunctions  to  restrain  the  collection  of 
taxes,  will  be  allowed  only  where  a  question  of  the  existence 
of  Constitutional  power  is  involved,  and  not  where  the  ques- 
tion is  as  regards  matters  only  of  detail,  ex.  gr.  the  valuation 
of  property,  the  sufficiency  of  a  Sheriffs  bond,  &c.     Ibid. 

53.  Whether  a  law  authorizing  the  Commissioners  of  a 
particular  county  to  levy  taxes  for  the  purpose  of  buildiug 
bridges,  is  a  private  or  a  public-local  law  ?     Quwre.     Ibid. 

54.  If  a  private  act  be  certified  by  the  presiding  officers 
of  the  two  branches  of  the  Legislature  as  duly  ratified,  it  is 
not  competent  for  the  judiciary  te  go  behind  such  record, 


88  CONSTITUTION. 

and  enquire  collaterally,  {ex.  gr )  whether  the  thirty  days 
notice  of  an  application  therefor,  required  by  the  Constitution, 
have  been  given.     lMd. 

55.  An  act  giving  the  special  approval  of  the  Legislature 
to  county  taxation  for  special  purposes  (Const.  Art.  V.  Sec. 
7,)  need  not  specify  the  sum  to  be  raised  by  such  taxation^ 
nor  a  limit  beyond  which  it  cannot  be  carried  ;  details  are  not 
proper  in  such  statutes, — these  should  be  left  to  the  Com- 
missioners.    Ibid. 

56.  It  is  doubtful  whether  it  be  practicable  for  the  courts 
to  give  effect  to  regulations  imposed  by  Constitution  upon 
the  exercise  of  the  tax  power:  Whether  the  power  to  tax  do 
or  do  not  exist,  is  a  proper  subject  for  judicial  enquiry: 
Whether  the  exercise  of  a  conceded  power  in  any  particular 
case  were  proper,  is  to  be  left  to  tne  constituents  of  the  body 
which  imposes  the  taxation.     Ibid. 

57.  When  an  injunction  was  sought  against  levying  a  tax, 
on  the  alleged  ground,  that  it  was  to  be  applied  to  build  a 
particular  bridge  which  was  to  be  constructed  at  an  incon- 
venient place,  was  connected  with  no  public  road,  was  upon 
a  plan  too  costly,  and  was  therefore,  unconstitutional :  held, 
that,  as  the  general  head  of  repairing  and  building  bridges 
came  under  the  "  necessary  expenses"  of  the  county,  it  was 
not  competent  for  the  court  to  review  a  decision  of  the  County 
Commissioners  as  to  what  particular  bridge,  as  regards  either 
location  or  description,  is,  or  is  not  necessary.     Ibid. 

58.  The  "equation  of  taxation"  established  by  the  Con- 
stitution of  1808,  (Art.  V,  Sec.  7,)  does  not  apply  to  prevent 
a  county  from  providing  for  the  payment  of  its  debts  existing 
when  that  Constitution  was  adopted.  Pegram  v.  Comm%r$  of 
Cleaveland  Co.,  64  K  C.  R.  557. 

59.  By  Pearson,  V.  J.  and  Dicli,  J ,  The  Constitutional 
duties  of  the  Justices  of  the  Supreme  Court  did  not  forbid 
their  compliance  with  a  request  by  the  General  Assembly 
elected  in  1868,  to  indicate  what  would  be  the  construction 
by  the  court,  of  the  Constitutional  provisions  relating  to  the 
tenure  of  the  office  of  the  members  of  that  Assembly  ;  but, 
Contra,  by  Read e,  Rodman  and  Settle,  JJ.  Opinion  of  the 
Justices,  64  K  C.  R.  785. 

60.  The  31st  section  of  the  Act  of  1868-r69,  ch  156,  en- 
titled an  Act  in  relation  to  landlord  and  tenant  is  unconsti- 
tutional, because  it  professes  to  confer  upon  Justices  of  the 
Peace  jurisdiction  to  administer  the  same  remedies  to  pur- 
chasers of  land  under  execution  against  the  defendant  there- 
in, as  to  landlords  against  their  tenants,  contrary  to  the  15th. 


CONSTITUTION.  89 

and  33d  sections  of  the  4th  article  of  the  Constitution,  which 
confer  exclusive  original  jurisdiction  upon  the  Superior  Courts 
of  all  civil  actions,  in  which  the  title  to  real  estate  may  come 
in  question.     Credit  v.  Gibbs,  65  N.  C  E,  192. 

61.  Those  sections  of  the  Act  of  1868-'9,  ch.  256,  which 
give  summary  proceedings  before  Justices  of  the  Peace,  in 
favor  of  landlords,  to  recover  possession  of  lands  from  their 
tenants  who  hold  over  after  the  expiration  of  their  leases,  are 
not  unconstitutional,  because,  in  consequence  of  the  doctrine 
of  estoppel,  the  title  to  the  real  estate  cannot  come  in  ques- 
tion.    Ibid.. 

62.  The  act  of  the  Legislature  of  February  2d,  1871,  au- 
thorizing the  Board  of  Commissioners  to  appoint  a  tax  col- 
lector for  the  county  of  Lincoln,  is  unconstitutional.  Kinyv. 
Commissioners  of  Lincoln,  Go  N.  C.  E.  603. 

63.  An  office  is  property.  There  is  here  a  contract  be- 
tween the  sheriff  and  the  State  that  he.  will  discharge  the 
duties  of  the  office,  and  it  cannot  be  abrogated  or  impaired 
except  by  the  consent  of  both  parties.     Ibid. 

64  The  powers  of  the  Courts  to  declare  statutes  uncon- 
stitutional is  a  high  prerogative,  and  ought  to  be  exercised 
with  great  caution  ;  they  should  "  not  declare  a  statute  void, 
unless  the  nullity  and  invalidity  of  the  act  are  in  their  judg- 
ment placed  beyond  a  reasonable  doubt;  and  such  reasonable 
doubt  must  be  solved  in  favor  of  legislative  action."  King  v. 
Wilmington  &  Weldon  B.  B.  Co.,  66  N.  C.  E.  227. 

65.  The  Act  of  the  General  Assembly  of  1866-7,  entitled 
"  An  Act  relating  to  debts  contracted  during  the  war,"  and 
allowing  either  party  to  show,  on  the  trial,  the  consideration 
of  the  contract,  and  requiring  the  jury  in  making  up  their  ver- 
dict to  take  the  same  into  consideration,  is  not  unconstitu- 
tional.    Ibid. 

66.  The  Acts  of  the  General  Assembly,  restoring  to  mar- 
ried women,  their  common-law  right  of  dower,  are  unconsti- 
tutional, so  far  as  they  apply  to  marriages  contracted  prior  to 
their  passage.      Wesson  v.  Johnson,  66  N.  C.  E.  189. 

67.  The  power  of  the  Legislature  to  confer  criminal  juris- 
diction on  the  Chief  Magistrates  of  towns  and  cities,  stands 
on  a  different  footing  from  the  power  to  confer  civil  jurisdic- 
tion.    State  v.  Pender,  66  N.  C.  E.  313. 

68.  By  the  4th  section  of  Article  IV,  of  the  Constitution, 
the  judicial  power  of  the  State  is  vested  in  a  court  for  the 
trial  of  impeachments,  a  Supreme  Court,  Superior  Courts, 
and  Special  Courts.  The  jurisdiction  of  Special  Courts  is 
defined  by  section  19  of  the  same  xVrticle.     Ibid. 


90  CONSTITUTION. 

_  69  The  act  of  1868-'69,  ch  178,  and  cb.  2,  of  the  par- 
ticular act,  sec.  1,  page  432,  gives  (among  other  officers 
enumerated)  to  Mayors,  Superintendents  of  Police  or  other 
chief  officers  of  cities  and  towns,  power  "  to  cause  to  be  kept 
all  laws  made  for  the  preservation  of  the  public  peace,"  &c  , 
and  ch.  3,  sec.  1,  of  the  same  act  gives  them  power  to  issue 
process  for  the  apprehension  of  persons  charged  with  any 
offence,  and  to  execute  the  powers  and  duties  conferred  in 
this  chapter,"  but  no  final  jurisdiction  is  given  to  them  by 
any  part  of  said  act.     Ibid. 

70.  The  power  thus  given  to  the  chief  officers  of  towns, 
&c,  can  be  supported  by  the  authority  given  the  Legislature 
by  the  Constitution,  to  create  special  courts  for  cities  and 
towns,  and  it  can  be  no  objection  to  the  act  in  question,  that 
it  does  not  authorize  these  officers  to  try  persons  charged 
with  misdemeanors,  but  simply  to  arrest  and  bind  them  over. 
Ibid. 

71.  There  is  nothing  in  the  Constitution,  taken  altogether, 
prohibiting  the  Legislature  from  giving  to  cities  and  towns 
the  power  of  selecting  and  designating  their  chief  officers. 
Ibid. 

72.  The  22nd  section  of  article  4  of  the  Constitution, 
which  provides  "  the  State  shall  be  divided  into  twelve  dis- 
tricts, for  each  of  which  a  Judge  shall  be  chosen,  who  shall 
hold  a  court  in  each  county,  at  least  twice  a  year,  to  continue 
for  two  weeks,"  does  not  by  express  words,  or  necessary 
implication  restrict  the  Legislature  from  passing  an  act 
authorizing  a  Judge,  under  certain  circumstances,  to  continue 
a  court  longer  than  two  weeks.  State  v.  Adair,  (50  N.  C.  E. 
298. 

73.  Therefore,  sec.  397,  O  O  P.,  which  authorizes  a  judge, 
"in  case  the  term  of  a  court  shall  expire  while  a  trial  for 
felony,  &c,  is  in  progress,  to  continue  the  same  as  long  as 
may  be  necessary  for  the  purposes  of  the  case,"  is  not  uncon- 
stitutional.    Ibid 

74.  The  act  of  the  General  Assembly,  entitled,  "  An  act 
for  the  better  government  of  the  Penitentiary,  ratified  the 
1st  day  of  April,  1871,  violates  section  10,  of  article  3,  of  the 
Constitution,  and  is  therefore  void.  People  ex  rel.  Welker  et 
al.  v.  Bledsoe  et  al,  68  N.  0.  R.  457. 

75.  Chapter  16,  section  1,  Laws  of  1870-'71.  purporting 
to  repeal  altogether  section  8,  chapter  41,  of  the  ordinances  of 
Convention  of  1868,  which  fixes  the  compensation  of  the 
Commissioners  to  report  a  Code  of  Civil  Procedure,  &c ,  is 


CONSTITUTION".  91 

unconstitutional   and   void.     Bailey   v.    Caldwell,    Gov.,   68 
N.  0.  R.  472. 

7G.  The  act  of  2d  of  February,  1 872,  entitled,  "  An  act  in 
relation  to  the  election  ot  Keeper  of  the  Capitol,"  is  void,  and 
confers  no  power  on  the  General  Assembly  to  appoint  that 
officer.     People  ex  rel.  Rogers  v.  McGoivan,  G8  N.  0.  R.  520. 

77.  The  9th  section  of  the  Act  of  1868-'69,  chapter  70, 
which  enacted  that  "no  property  shall  be  sold  under  any 
•deed  of  trust  or  mortgage,  until  the  debts  secured  in  said 
deed  are  reduced  to  judgments  according  to  provisions  of  this 
act,"  was  unconstitutional,  because  it  not  only  attempted  to 
impair  the  obligation  of  a  contract,  but  to  alter  it  by  adding 
a  condition.  (The  above  section  was  repealed  by  the  Act  ot 
1869-70,  chap.  29)  Latham,  Ex'r,  e,t  al.  v.  Whiihursl,  69 
N.  O  R.  33. 

78.  Although  there  is  no  clause  iu  the  Constitution  of 
North  Carolina  which  expressly  prohibits  private  property 
from  being  taken  for  public  use  without  compensation;  and 
although  the  clause  to  that  effect  in  the  Constitution  ot  the 
United  States  applies  only  to  acts  by  the  United  States,  and 
not  to  the  government  of  the  States,  yet  the  principle  is  so 
grounded  in  natural  equity,  that  it  has  never  been  denied  to  be 
a  part  of  the  law  of  North  Carolina.  Johnston  v.  Rankin,  70 
N.  C.  R.  550. 

79  The  Act  of  1863,  Private  Acts,  chap  47,  authorizing 
the  Commissioners  of  the  town  of  Asheville  to  extend  the 
streets,  &c,  is  not  unconstitutional  because  of  the  manner 
therein  prescribed,  providing  compensation  to  the  owners  of 
the  land  taken  or  injured  by  extending  such  street.     Ibid. 

80.  The  Act  of  l86S-'69,  chap.  272,  and  the  Act  amend- 
atory thereof,  1871-'72,  chap.  15,  authorizing  the  Governor 
of  the  State  to  appoint  Special  Terms  of  the  Superior 
Courts,  are  not  unconstitutional.  And  in  appointing  such 
Special  Terms,  the  Governor  is  not  bound  by  the  certificate 
of  the  Judge,  so  far  as  to  confine  snob  terms  to  the  trial  of  a 
particular  class  of  cases.     State  v.  Ketchey,  70  N.  C.  R.  621. 

See  (Amnesty,  11,  12,  13.)  (Attorneys  at  Law,  10.)  (Banks 
and  Bank  Notes,  13,  14  )  (Confederate  Money,  30.)  (Stay 
Law.)  (Counties  and  County  Commissioners,  5,  7.  (Drain- 
ing Wet  Lands,  7.)  (Taxes  and  Taxation,  17,  18,  19,  20, 
21,  29,  31,  32,  33,  34,  35  )  (Homestead  and  Personal  prop- 
erty Exemption,  1,  2,  7,  21,  30.)     (Mandamus,  11,  12.) 


92  CONTEMPT. 


CONTEMPT. 

1.  One  who  has  been  committed  under  an  attachment  for 
not  paying  a  sum  of  money  to  a  party  as  ordered,  can  be  dis- 
charged only  by  payment,  or  by  resorting  to  the  relief  given 
by  the  insolvent  debtor's  act.   Wood  v.  Wood,  Phil.  L.  R.  538. 

2.  The  act  of  1866-7,  abolishing  imprisonment  for  debt, 
does  not  embrace  cases  of  commitment  nuder  attachment  for 
a  failure  to  comply  with  an  order  of  court.     Ibid. 

3.  Courts  have  power  in  North  Carolina  to  order  counsel 
to  pay  the  costs  of  cases  in  which  they  have  been  guilty  of 
gross  negligence  (even  of  a  kind  not  included  in  Rev.  Code, 
ch.  9,  s-  5,)  such  conduct  being  a  sort  of  contempt.  Bobbins 
and  Jackson,  ex  parte,  63  N.  C.  R.  309. 

4.  Where  the  contempt  imputed,  occurred  in  a  different 
Court,  or  at  another  time,  and  was  not  in  the  face  of  the 
Court  which  punished  it, — the  parties  affected  by  the  order 
may  appeal.     Ibid 

5.  Upon  the  facts  of  the  case  stated  here,  there  was  no 
contempt  by  the  counsel  made  out      Ibid 

6.  A  court  has  power  to  require  members  of  the  Bar  to 
purge  themselves  from  a  charge  of  contempt  incurred  by  their 
publishing,  over  their  names,  in  a  newspaper,  libellous  mat- 
ter, directly  tending  to  impair  the  respect  due  to  its  members. 
Moore,  ex  parte,  63  N".  0.  R  397. 

7.  For  such  persons,  under  such  circumstances,  to  state 
that  the  Judges  of  the  Supreme  Court  singly  or  en  masse, 
moved  from  that  becoming  propriety  so  indispensable  to  secure 
the  respect  of  the  people,  and  throwing  aside  the  ermine,  rush- 
ed into  the  mad  contest  of  politics,  under  the  excitement  of 
drums  and  flags,  if  admitted  to  be  untrue,  is  libellous  ;  and, 
especially  when  connected  with  an  inference  expressly  and 
immediately  drawn  in  the  same  paper,  that  such  judges  will 
yield  to  every  temptation  to  serve  their  fellow  partisans,  and 
are  unfit  to  hold  the  balance  of  justice,  directly  tends  to  im- 
pair the  respect  due  to  the  members  of  such  court.     Ibid. 

8.  lu  a  rule  to  show  cause  why  a  person  shall  not  be  pun- 
ished for  contempt,  the  actual  intention  of  the  respondent  is' 
material,  in  which  respect  it  differs  from  an  indictment  for  the 
like  offence  ;  therefore,  where  the  respondent  meets  the  words 
of  the  rule  of  disavowing  upon  oath  any  intention  of  commit- 
ting a  contempt  of  the  Court,  or  of  impairing  the  respect  due 
to  its  authority,  the  rule  must  be  discharged.     Ibid. 

9.  Where  a  party  is  excused,  not  acquitted,  under  a  rule*, 
&c,  he  will  be  required  to  pay  the  costs  of  such  rule.     Ibid. 


CONTEMPT.  93 

10.  Tlie  proper  method  of  bringing  before  the  Supreme 
Court  for  review,  the  order  of  a  Superior  Court  in  regard  to 
alleged  misconduct  by  oue  of  its  officers,  (here,  an  attorney,) 
is,  by  bringing  up  the  record  proper  of  such  court,  by  a 
certiorari  in  the  nature  of  a  writ  of  error.  Ex  parte  Biggs, 
G4  N.  C  R.  202. 

11.  A  mandamus  in  such  case,  would  be  improper.    Ibid. 

12.  The  party  charged  in  such  case,  has  no  right  to 
appeal.     Ibid, 

13.  A  court  has  power,  on  the  ground  of  self  protection, 
outside  of  the  common  law  and  statutory  doctrine  of  contempt 
to  disbar  an  attorney  who  has  shown  himself  unfit  to  be  one 
of  its  officers;  and  such  unfitness  may  be  caused  not  only  by 
moral  delinquency,  but  by  acts  (here,  a  publication,)  calculated 
and  intended  to  injure  the  Court.     Ibid 

14.  If  an  attorney  who  is  also  an  editor  of  a  newspaper, 
and  who  in  his  latter  character  writes  an  article  in  disparage- 
ment of  the  court,  be  put  under  a  rule  by  such  court,  he  may 
by  answer  raise  the  point  whether  a  prima  facie  case  has 
been  made  out  against  him  and  he  be  called  on  to  make  a 
disavowal, — but  where,  (as  here)  he  does  not  take  that  course, 
but  elects  to  disavow,  the  case  does  not  present  the  question, 
whether  an  editorial  written  by  one  who  is  an  attorney  as 
well  as  an  editor,  falls  under  general  principles  governing 
cases  of  miscouduct  by  attorneys  of  the  court.     Ibid. 

15.  Where,  in  such  a  case,  the  respondent  submitted  to 
try  himself  and  filed  a  disavowal  in  these  words,  "  This 
respondent  respectfully  answers :  That  as  an  attorney  and 
counsellor  iu  this  court,  he  has  ever  been  respectful,  both  in 
his  deportment  and  language,  to  his  Honor  Judge  E.  W. 
Joues,  and  disavows  having  ever  entertained  any  intention  of 
committing  a  contempt  of  the  court,  or  any  purpose  to 
destroy  or  impair  its  authority,  or  the  respect  due  thereto  :" 
held,  that  although  (in  the  expression  italicised,)  more  gen- 
eral than  there  was  occasion  for,  the  disavowal  was  sufficient 
to  excuse,  if  not  to  acquit ;  even  although  in  a  subsequent 
paragraph  the  respondent  insisted,  that  the  article  was  not 
libellous,  that  by  becoming  an  attorney  he  had  not  lost  his 
rights  as  an  editor,  that  the  article  was  written  in  the  latter 
character,  and  that  it  did  not  transcend  the  limits  to  criticism 
upon  public  meu,  allowed  to  the  freedom  of  the  press.   Ibid. 

.  16.  A  fine  for  contempt  of  Court  is  a  punishment  for  a 
wrong  done  the  State,  and  is  payable  to  the  State.  In  the 
matter  of  Rhodes,  65  N.  C.  R.  518. 

17.     It  is  a  novelty  unknown  to  the  law,  for  a  Judge  ho  or- 


94  CONTEMPT. 

der  the  penalty  inflicted  upon  a  party  for  a  contempt  of  Court 
to  be  paid  to  the  party  aggrieved.  The  State  alone  is  en- 
titled to  the  penalty.  Morris  v.  Wliitehead,  65  N.  C.  E.  637. 

18.  An  answer  to  a  rule  on  an  attorney  of  the  Court  to 
show  cause  why,  under  pain  of  contempt,  he  should  not  pay 
into  Court  a  sum  of  money  received  by  him  for  a  client,  which 
admits  the  receipt  and  non-payment,  but,  denies  any  applica- 
tion of  it  to  his  own  use ;  which  avers  its  loss,  but,  in  con- 
sequence of  long  continued  drunkenness,  respondent  could 
not  tell  how ;  suggesting  as  a  supposition,  that  respondent 
had  burnt  it  or  put  it  away  in  some  secret  place  to  prevent 
his  destruction  of  it ;  and  avowing  an  inability  to  find  it  after 
diligeut  search :  held,  to  be  insufficient,  and  to  authorize  a 
further  rule  on  respondent  to  pay  the  money  into  Court,  or 
show  cause  why  he  should  not  be  attached.  Kane  v.  Hay- 
wood, 6t>  N.  G."  JR.  1 . 

19.  But  a  return  to  such  second  rule,  which  avows,  that 
after  making  every  effort  to  comply  with  the  rule,  it  is  out  of 
respondent's  power  to  do  so  ;  that  he  is  wholly  insolvent,  has 
nothing  wherewith  to  support  himself  and  family,  could  ob- 
tain no  aid  from  his  friends  and  relations,  and  has  no  credit; 
and  that  in  failing  to  perform  the  order,  he  intended  no  con- 
tempt of  the  Court,  and  deeply  regretted  his  inability  to  do 
justice  to  his  client :  held,  to  be  sufficient,  and  entitled  the 
respondent  to  be  relieved  from  arrest  and  imprisonment,  be- 
cause the  Court  was  satisfied  that  it  was  not  in  his  power  to 
pay  the  money  into  Court.     Ibid. 

20.  If  a  party  is  ordered  to  execute  a  deed  and  refuses  to 
do  it,  be  will  be  kept  in  jail  until  he  does  do  it,  for  that  is  a 
tfhing  which  he  can  do.  So,  if  an  attorney,  by  false  represen- 
tations, procures  his  client  for  an  inadequate  consideration, 
to  assign  the  cause  of  action,  he  will  be  imprisoned  until  he 
shall  execute  a  release  and  re-assignment ;  but,  when  a  man 
is  ordered  to  pay  money  into  Court,  and  swears  that  after 
every  eflort,  it  is  out  of  his  power  to  pay  any  part  of  it,  (in 
the  absence  of  any  suggestion  to  the  contrary,)  that  is  an  end 
of  the  proceeding  ;  for  the  Court  will  not  require  an  impossi- 
bility, or  imprison  a  man  perpetually  for  a  debt,  he  having 
purged  himself  of  the  contempt      Ibid. 

21.  In  such  a  case,  on  a  rule  against  the  attorney  to  show 
cause  whv  his  name  should  not  be  stricken  from  the  roll,  this 
Court,  prior  to  the  Act  of  the  General  Assembly,  ratified 
April  4th,  1871,  possessed  the  power  to  make  such  rule  abso- 
lute, and  would  have  felt  it  their  duty  to  have  taken  that 
course.     Ibid. 


CONTEMPT.  95 

22.  By  the  proper  construction  of  that  Act,  this  court  is 
shorn  of  its  power  to  disrobe  an  attorney,  except  in  the  single 
instance,  where  he  has  been  indicted  for  some  criminal  offence, 
showing  him  to  be  unfit  to  be  trusted  in  the  discharge  of  the 
duties  of  his  profession,  and  upon  such  indictment  has  either 
been  convicted  or  plead  guilty.     Ihid. 

23.  The  act  of  1871,  fails  to  provide  any  power  to  be  used 
in  the  stead  of  the  former  power  of  the  court,  and  so  is  a  dis- 
abling and  not  an  enabling  statute.     Ibid 

24.  The  words  "  convicted,  or  in  open  court  confessed 
himself  guilty  of  some  criminal  oflence,"  used  in  this  Act, 
have  acquired  a  technical  ueaning,  and  must  be  construed  to 
convey  the  idea  that  the  party  has  beeu  convicted  by  a  jury, 
or  has  in  open  court,  when  charged  upon  an  indictment,  de- 
clined to  take  issue  by  the  plea  of  not  guilty,  and  confessed 
himself  guilty.     Ibid. 

25.  The  admissions  of  an  attorney,  made  in  answer  to  a 
rule  to  show  cause  why  he  should  not  be  attached  for  con- 
tempt in  failing  to  pay  money  into  court,  which  he  wrongfully 
withholds,  is  not  such  a  "  confession  in  open  court,"  as  is  con- 
templated by  the  act.     1  bid. 

26.  Sucli  admission  cannot  be  considered  technically  as  a 
confession,  because  it  is  not  voluntary  as  when  one  is  charged 
on  an  indictment,  and  confess  his  guilt  in  open  court,  but  the 
respondent  was  compellable  under  heavy  pains  and  penalties, 
to  answer  under  oath.     1  bid. 

27.  To  allow  his  answer  to  be  used  as  a  confession  to 
establish  guilt,  would  be  objectionable  as  a  means  to  compel 
him  to  criminate  himself  on  oath,  and  for  such  an  inquistorial 
proceeding  there  is  no  precedent  in  the  courts  of  any  coun- 
try which  enjoys  the  rights  guaranteed  by  Magna  Charta. 
Ibid. 

28.  The  wrongful  retention  of  a  client's  money  by  an 
attorney,  was  before  the  passage  of  the  late  Act,  not  a  direct, 
but  a  constructive  contempt,  made  so  by  the  common  law,  to 
enable  the  court  to  purge  the  Bar  of  unworthy  members 
1  bid 

29.  Whether  this  court  possess  the  power  to  punish  under 
the  circumstances,  by  virtue  of  section  2,  chapter  177,  Acts 
of  18G8-'G9,  for  misbehavior  as  an  attorney  in  his  official  char- 
acter under  paragraph  8,  sec.  1,  discussed,  but  no  definite 
conclusion  arrived  at.     Hid. 

30.  But,  if  it  were  clear  that  this  court  has  full  power  to 
punish,  by  fine  and  imprisonment,  for  a  constructive  conse- 
quential coutempt,    it  might   be   questioned   whether   this 


96 


CONTEMPT.— CONTRACTS. 


court,  which  was  not  created  for  the  punishment  of  criminal 
offences,  should,  on  mere  motion,  inflict  such  puuishment, 
while  the  proceeding  to  disbar  is  suspended  to  wait  further 
preliminary  steps,  should  any  be  taken,  in  the  Superior 
Court.     Ibid. 

31.  Fine  and  imprisonment  is  not  the  appropriate  remedy 
to  be  applied  to  an  attorney,  who,  by  reason  of  moral  delin- 
quency or  other  cause,  has  shown  himself  to  be  an  unworthy 
member  of  the  profession.     Ibid. 

32.  If,  iu  the  case  of  proceedings  supplemental  to  execu- 
tion, an  order  be  made  appointing  a  receiver  aud  directing  a 
certain  person  to  deliver  a  bond  alleged  to  belong  to  the  exe- 
cution debtor  to  the  receiver,  he  is  prima  facie  guilty  of  a 
contempt  of  court  if  he  hand  the  bond  to  an  attorney  for 
collection  instead  of  delivering  it  to  the  receiver,  though  he 
may  be  discharged  upon  swearing  that  he  only  intended  for 
a  certain  purpose  to  get  a  judgment  and  not  to  collect  the 
money,  and  that  thereby  he  had  not  intended  any  contempt 
of  the  court,  but  his  discharge  should  be  granted  on  his 
paying  the  costs.     Bond  v.  Bond,  09  K  C  R.  97. 

See  (Bastardy  6.) 


CONTRACTS. 


I.     Constiuction  of    contracts  and 

their  enforcement. 
II.     Sale  of  personal  chattels. 


III.  As  affected  by  the  statute   of 

frauds. 

IV.  Void  and  voidable  contracts. 


I.     CONSTRUCTION  OF  CONTRACTS  AND  THEIR  ENFORCEMENT. 

1.  A  contract  gave  to  the  parties  "  the  right  to  determine 
what  work  is  necessary  to  be  done,  for  the  purpose  of  enlarg- 
ing, &o„  the  said  canal,  &c. ;  and  he  or  they  shall  be  fully 
empowered  to  do  the  said  work  or  have  the  same  done,  and 
the  said  parties  shall  bear  and  pay  the  reasonable  expense 
aud  the  burden  of  the  said  work,  iu  the  following  proportions, 
&c. :  held,  that  the  parties  were  bound  thereby,  not  to  do  the 
work  or  have  it  done,  but  to  pay  a  ratable  part  of  such 
expenses  as  one  or  more  of  them  may  incur.  Cobb  v.  Crom- 
well, Phil.  Eq.  R.  18. 

2.  That,  supposing  the  parties  had  undertaken  to  do  the 
work,  the  court  could  not  enforce  a  specific  performance, 
because  there  is  no  mode  of  which  the  court  can  avail  itself 
for  determining  what  work  is  necessary  ;  that  question  being, 


CONTRACTS— I.  79 

by  the  contract,  left  to  the  decision  of  some  one  or  more  of 
the  parties.     Ibid. 

3.  So  long  as  a  contract  for  the  sale  of  land  remains  exe- 
cutory on  both  sides,  the  vendor  has  the  same  right  to  enforce 
a  specific  performance  of  it  against  the  purchaser,  as  the 
hitter  has  against  him.  Therefore,  in  such  a  case  the  vendor 
may  maintain  a  bill  agaiust  the  vendee,  to  enforce  the  pay- 
ment of  the  purchase  money.  Springs  v.  Sanders,  Phil.  Eq. 
E.  67. 

4.  Where  it  is  proved  or  admitted  that  one  bought  and 
took  title  to  land  under  a  parol  agreement  with  another  to 
hold  it  subject  to  the  right  of  the  latter  to  repay  the  pur- 
chase money  and  have  the  land  conveyed  to  him,  such  agree- 
ment will  be  enforced.      (John  v.  Chapman,  Phil.  Eq.  B.  92. 

5.  Where  the  evidence  satisfies  a  court  that  a  person  from 
whom  a  specific  performance  is  sought,  entered  into  the  con- 
tract in  question  without  understanding  it,  such  performance 
will  not  be  enforced.     Pendleton  v.  Dal  ton,  Phil.  Eq.  R.  119. 

G.  Where  the  owner  of  a  one-third  interest  in  land  con- 
veyed that  interest  to  the  owner  of  the  other  two-thirds,  and 
took  a  covenant  from  the  bargainee  that  he  would  sell  the 
tract  to  the  best  advantage  and  pay  the  bargainor  one-fourth 
of  the  proceeds,  but  would  not  sell  unless  such  one-fourth 
would  amount  to  $1,500,  and  in  case  no  sale  should  be 
effected  in  six  months,  would  reconvey  to  the  bargainor,  or 
pay  him  $1,300 ;  and  a  sale  was  not  effected  till  after  the 
lapse  of  six  months:  held,  that  the  obligation  to  sell  had 
ceased,  and  the  bargainor  could  only  claim  a  reconveyance  of 
his  former  interest  in  the  land,  or  $1,500,  at  the  election  of 
bargainee.     Han/rave  v.  Smith,  Phil.  Eq.  It.  105. 

7.  Where  a  bill  was  filed  by  the  purchasers  for  a  specific 
performance  of  a  contract  to  sell  laud,  which  suggested  that 
the  bargainor  could  not  make  a  good  title,  and  prayed  that 
until  such  was  made,  the  bargainor  should  be  enjoined  from 
enforcing  a  judgment  obtained  by  him  for  the  purchase  mo- 
ney ;  and  thereupon  the  defendant  by  answer  tendered  a  deed 
which  was  filed  therewith  and  was  alleged  to  convey  a  good 
title  :  held,  that  the  course  of  the  court  was  not  either  to  dis- 
solve the  injunction  or  to  continue  it  to  the  bearing,  but  to 
continue  it  until  a  report  should  come  in  from  the  Master 
upon  a  reference  to  him  as  to  the  sufficiency  of  the  title  so 
tendered.     Kilpatrich  v.  Harris,  Phil.  Eq.  It.  222. 

8.  In  suits  for  specific  performance,  in  the  absence  of  al- 
legations of  fraud  or  imposition,  the  court  will  not  review  de- 
cisions  made  by  the  parties  as  to  the  comparative  values  of 

7 


OS  CONTRACTS— I. 

the  property  in  question  and  of  the  article  in  which  it  wa& 
paid  for.     Turley  v.  lYowell,  Phil.  Eq.  It.  301. 

9.  Contracts,  the  consideration  of  which  is  Confederate 
money  are  not  therefore  illegal.     Ibid. 

10.  When  an  agreement  was  entered  into  between  the 
owner  of  a  farm  and  another  person,  by  which  the  former  wns 
to  furnish  the  farm  to  the  latter  for  two  years  with  the  stock 
of  bogs  and  cattle  upon  it  and  mules,  provisions  and  farming 
implements  ;  and  the  latter  was  to  give  his  personal  attention 
to  the  farming  operations,  have  the  entire  control  of  the  farm 
and  furnish  the  twenty-two  laborers  that  were  required  ;  and 
thereupon  the  two  were  to  share  equally  the  produce  of  the 
farm :  held,  that  the  agreement  constituted  an  agricultural 
partnership;  that  the  share  going  to  the  owner  of  the  farm 
was  rent;  and  that  the  relation  between  the  parties  was  not 
that  of  landlord  and  tenant;  and  therefore,  held  further  that, 
upon  the  death  of  the  owner  of  the  farm  before  the  expira- 
tion of  the  two  years,  his  share  which  accrued  thereafter  did 
not  go  to  the  devisees  of  the  farm,  but  was  included  under  a 
bequest  to  another,  of  "the  crop,  stock  and  farming  utensils, 
and  all  other  perishable  property  on  said  farm."  Lewis  v. 
Wilkins,  Phil.  Eq.  R.  303. 

11.  Where  a  note  was  endorsed  and  delivered  upon  a 
parol  agreement  that  it  should  be  security  for  money  then 
borrowed  of  the  endorsee  by  the  endorser,  a  court  of  equity 
will  enforce  such  agreement  and  enjoin  an  execution  (here  a 
ca.  sa.)  obtained  at  law  by  the  endorsee.  Smith  v.  Coble. 
Phil.  Eq.  R.  332. 

12.  To  such  a  suit  iu  equity  the  surety  upon  the  ca.  sa, 
bond  is  not  a  necessary  party.     Ibid. 

13.  One  who  has  accepted  a  parol  promise  for  the  con- 
veyance of  laud,  cannot,  upon  being  compelled  at  law  to  pay 
the  notes  given  for  the  purchase  money  waive  his  claim  to 
specify  performance,  and  compel  a  repayment  of  such  money 
by  the  bargainors  who  submit  to  perform  the  contract.  Foust 
v.  Shoffner,  Phil  Eq.  R.  242. 

14.  A  description  of  land  as — A  tract  iu  Iredell  county, 
containing  30  acres,  adjoining  the  lands  of  William  Shaver, 
Caldwell  and  others,  held  to  be  sufficient  in  a  contract  to 
convey.     Shaver  v.  Shoemaker.  Phil.  Eq.  R.  327. 

15.  A  contract  in  these  words :  "  We  have  sold  to  W.  & 
D.  all  the  ginseng  we  have  on  hand  and  shall  collect  this  sea- 
sou  or  fall,  amounting  from  five  to  eight  thousand  pounds,  as 
near  as  we  can  estimate,  including  all  we  can  get,"  binds  the 
seller  to  deliver  no  particular  quantity,  but  only  so  much  as 


CONTRACTS— I.  <J9 

is  on  bund,  ami  may  be  gathered.    Herren  v.   Gaines,  63 
N.  C.  R.  72. 

10.  Where  a  debtor  transfered  by  deed  to  his  creditor 
his  interest  in  a  certain  receipt  given  by  a  Constable  for 
notes  in  the  hands  of  the  latter  for  collection,  specifying  the 
receipt  as  then  in  suit,  and  then  authorizing  the  crditor  to 
receive  the  proceeds  ;  and  at  the  same  time  the  creditor  gave 
to  the  debtor  a  receipt  stating  that  the  amount  to  be  received 
from  the  Constable  should  be  credited  on  the  note  due  by 
the  debtor  to  him,  held  that  by  such  agreement,  the  exclu- 
sive right  to  control  the  pending  suit  and  to  receive  its  pro- 
ceeds, was  vested  in  the  creditor,  and  that  the  debtor  was 
entitled  to  a  credit  upou  his  note  for  any  amount  paid  into 
the  Cleric's  office  or  otherwise,  under  a  judgment  thereon  ; 
also,  that  so  far  from  its  being  the  duty  of  the  debtor  to 
receive  such  amount  and  tender  it  to  the  creditor,  he  was 
not  authorized  to  receive  it.  Crawford  v.  Woody,  03 
W.  C.  R.  100. 

17.  Time,  which  iu  equity  generally  is  not  of  the  essence 
of  a  contract,  may  become  so  at  periods  when  the  currency 
is  rapidly  depreciating  from  day  to  day.  Whitaker  v.  Bond, 
63  N.  C.  R,  290. 

18.  Where  a  vendor  of  land  filed  a  bill  for  specific  per- 
formance of  the  contract,  alleging  that  the  vendee  had  con- 
tracted to  pay  specie,  but  had  prevailed  upon  the  sheriff  (who 
had  iu  his  hands  an  execution  for  the  money  with  instruc- 
tions to  accept  only  specie,)  by  menaces  of  au  appeal  to  the- 
Military  to  receive  currency  ;  held,  that  the  contract  to  pay 
specie  having  merged  in  the  judgment,  the  latter  was  satisfied 
by  the  action  of  the  sheriff,  and  therefore  the  vendee  had 
already  complied  with  his  contract.  Gibson  v.  Foard,  63i 
N.  C.R.  103. 

(As  to  the  rights  of  the  plaintiff,  against  the  sheriff:  Qutere^) 
Ibid, 

19  Where  a  part  of  the  consideration  for  a  contract  to 
sell  land  made  in  March,  1865,  was  a  sum  iu  Coutederate 
currency,  which  was  not  paid,  and  before  the  contract  was 
completed,  tuat  currency  had  become  worthless:  held,  that 
the  purchaser  was  not  entitled  to  a  decree  for  specific  per- 
formance.    Love  v.  Cobb,  63  N.  C.  R.  328. 

20.  Where  one  bargains  for  land  of  another  who  (as  he 
knows,)  has  only  au  equitable  title:  held,  upon  the  latter 
being  unable  to  procure  a  title,  by  the  refusal  of  his  bargain- 
or, that  he  is  not  bound  to  a  specific  performance  of  his  con- 
tract.    Ibid 


100  CONTRACTS— I. 

21.  Specific  performance  will  not  be  decreed,  where,  in 
the  nature  of  things,  the  only  effect  of  the  decree  will  be  to 
imprison  the  defendant  perpetually.     Ibid. 

22.  Equity  will  not  enforce  the  specific  performance  of  a 
contract  unless  it  be  practicable,  and  unless  the  party  seek- 
ing relief  shows  that  in  reasonable  time  he  performed  his  part 
of  the  contract,  or  at  the  time  of  seeking  relief  is  able  and 
ready  to  do  so  ;  nor  will  it  rescind  a  contract  otherwise  valid, 
because  subsequent  events  have  so  materially  changed  its 
operation  as  to  render  it  hard  and  oppressive  upon  one  of  the 
parties.     Addington  v.  Setzer,  03  N.  C.  R.  389. 

23.  Where,  in  18G3,  one  agreed,  for  a  sum  in  Confederate 
money,  to  sell  land  to  another,  &c,  and  to  relieve  the  land 
from  a  dower  estate ;  and  a  deed  for  the  land  was  then  exe- 
cuted and  a  partial  payment  made  :  held,  that  upon  the  form- 
er party's  delaying  to  tender  a  deed  for  the  dower  right  until 
1867,  he  could  not  compel  the  latter  to  specific  performance 
of  his  part  of  such  contract;  also,  that  he  had  no  right  to  ask 
for  a  rescission  of  the  contract.     Hid. 

24.  Semble,  that  a  bill  for  the  specific  performance  of  a 
contract  to  convey  land  cannot  be  sustained  by  a  vendee, 
where  the  memorandum  in  writing  relied  upon,  identifies  the 
tract  merely  as  "a  certain  tract  of  land  where  he  [the  bar- 
gainee] now  lives,"  and  the  bill  avers  that  such  tract  was 
sold,  fraudulently,  as  containing  328  acres,  but  in  truth  con- 
tained only  100  acres,  and  thereupon  proceeds  to  ask  an  ac- 
count of  what  has  been  paid  by  the  plaintiff,  and  a  convey- 
ance of  the  100  acres,  with  compensation;  the  principle  of 
cases  nearest  to  this  being,  that  a  vendor  may  ask  for  specific 
performance  offering  compensation  for  a  failure  in  the  title 
to  some  small  and  immaterial  part  of  the  land.  (Julver  v. 
Eggers,  63  N.  C.  R.  630. 

25.  Where  the  terms  of  a  contract  are  certain,  their  con- 
struction is  for  the  Court, — not  lor  the  jury.  Swepson  v. 
Summey,  64  N.  0.  R.  203. 

26.  Where  a  negotiation  was  pending  for  the  settlement 
of  a  debt  of  about  $30,000,  and  a  question  arose  as  to  what 
would  be  the  exact  balance  after  applying  certain  payments, 
&c, — such  balance  having  been  assumed  by  the  parties  to  be 
a  certain  amount,  it  was  also  agreed  that  if  it  were  more 
than  that — a  few  hundred  dollars  either  way  should  not  mat- 
ter: held,  that,  considering  the  amount  of  the  whole  debt, 
$2,160.00,  might  be  included  in  the  expression  a  few  hundred 
dollars.     Ibid. 

27.  A  party  who  purchases  and  pays  for  a  number  of 


CONTRACTS— I.  101 

barrels  of  flour,  warranted  as  "extra  and  superfine,"  having, 
upon  their  receipt,  notified  the  vendor  that  a  portion  of  them 
were  of  an  inferior  quality:  held,  that  as  the  vendor  did  not 
come  forward  and  remove  them,  and  pay  back  the  purchase 
money,  ihe  purchaser  had  a  right  to  sell  them  within  a  rea- 
sonable time,  and  recover  from  the  vendor  any  loss  upon 
resale,  together  with  all  proper  expenses,  such  as  would 
reimburse  him  for  his  money  expended,  hut  not  for  any  loss 
of  a  good  bargain.     Criffordv.  Belts,  04  N.  0.  R.  02. 

28.  Whatever  be  the  form  of  a  transaction,  or  the  words 
of  the  parties,  there  can  be  no  contract  (here,  of  sale,)  without 
an  intention  that  there  shall  be  one.  Decries  v.  Haywood, 
04  N.  C.  R.  83. 

2!).  Whether  or  not  a  contract  was  intended  in  any  par- 
ticular case,  is  a  question  for  the  jury,  upon  all  the  facts  and 
circumstances.     Ibid. 

30.  One  who  contracts  to  deliver  100  bushels  of  wheat, 
and  after  delivering  50  refuses  to  comply  farther  with  his 
contract,  cannot  recover  for  the  amount  delivered.  Russell 
v.  Stewart,  04  N.  O.  R.  487. 

31  In  a  case  where  the  defendants  agreed  with  the  plain- 
tiff, in  consideration  of  $1200,  to  be  paid  in  three  annual 
instalments  ending  with  June  1,  1809,  to  convey  to  him 
certain  islands  in  a  river  ;  and  the  plaintiff,  after  paying  $200, 
notified  the  defendants  that  in  consequence  of  their  inability 
to  make  title  he  abandoned  the  contract  and  demanded  the 
$200 ;  and  thereupon  brought  assumpsit  against  thein,  declar- 
ing, I,  for  money  had  and  received,  and  2,  on  a  special  con- 
tract to  convey  land;  it  being  admitted  that  up  to  the  time 
of  bringing  the  suit  the  defendants  had  no  title  to  five  of  the 
islands,  and  only  one-ninth  undivided  interest  in  several 
others:  held,  that  as  the  plaintiff  had  not  complied  with  his 
part  of  the  agreement,  he  could  not  maintain  the  second 
•count.  The  defendants  were  to  be  allowed  to  complete  their 
title  at  any  time  before  Jan.  1,  1800,  or,  (if  compellable  to 
do  so  earlier)  at  all  events,  before  the  tender  of  all  the  pur- 
chase money  by  the  plaintiff.  Evidence  offered  by  the  defen- 
dants, that  the  plaintiff  at  the  time  of  making  the  agreement 
knew  of  the  want  of  title  by  them,  was  competent.  In  such 
a  case,  in  order  to  enable  a  plaintiff  in  a  Court  of  law  to 
abandon  the  contract,  and  recover  back  his  payments  there- 
upon, the  failure  of  title  must  be  complete  ;  the  doctrine  of 
compliance  merely  insignificant  or  immaterial  being  one  con- 
fined to  courts  of  equity,  which,  as  this  case  was  pending  at 
the  adoption  of  the  Constitution  of  1808,  cannot  be  enforced 
here.     Shaw  v.  Vincent,  04  N.  C.  R.  000. 


102  CONTRACTS— I. 

32.  Where  A  is  indebted  to  B  by  note,  and  the  former 
gives  to  the  latter  a  mortgage  to  secure  the  payment  of  the 
note,  there  is  an  implied  promise  on  the  part  of  B  that  he 
will  suspend  suit  brought  upon  the  note.  Ilarshaw  v.  Mc- 
Kesson, 05  N.  C.  E.  088. 

33.  Where  there  is  no  proof  of  positive  fraud  or  imposi- 
tion, the  contract  of  an  heir  expectant  to  convey  what  may 
descend  to  him  by  the  death  of  the  ancestor,  is  obligatory 
upon  him,  and  such  contract  will  be  enforced  by  the  Courts. 
Hasten  v.  Marlow,  05  N.  C.  K.  095. 

34.  Where  the  consideration  is  fair  and  adequate  and  no 
undue  advantage  has  been  taken,  the  decree  is  lor  specific 
performance ;  where  advantage  has  been  taken  of  the  neces- 
sity of  the  heir  expectant,  the  contract  is  held  as  a  security 
for  the  return  of  the  mouey  actually  advanced,  together  with 
interest.     I  hid. 

35.  Where  A,  an  heir  expectant  of  B,  executed  a  deed 
to  C,  for  "his  entire  interest  in  all  the  personal  estate  of  B, 
and  also  his  entire  interest  in  all  the  real  estate  of  B,  that  he 
the  said  A  may  be  entitled  to  as  one  of  the  children  and 
heirs  at  law  of  B,"  it  does  not  convey  such  an  interest  as 
could  be  enforced  in  a  Court  of  Law  under  the  old  procedure, 
but  resort  must  have  been  made  to  a  Co.irt  of  Equity.  Ibid. 

30.  A  person  hired  tor  one  year,  who  is  wrongfully  dis- 
missed before  the  expiration  of  the  year,  is  not  required  to 
wait  till  the  end  of  the  year,  but  can  sue  at  once,  and  is  enti- 
tled to  recover  such  damages  as  he  has  sustained  by  such 
wrongful  dismissal.  He  may  treat  the  contract  as  rescinded, 
and  recover  upon  a  quanlam  meruit.  Briiikley  v.  Sicicegood, 
05  K  C.  R.  020. 

37.  When  the  terms  of  the  contract  are  in  writing,  or 
otherwise  ascertained,  the  construction  of  the  contract  is  for 
the  court  and  not  for  the  jury.  Hence,  where  it  appeared 
that  a  person  having  pork  to  sell  in  the  year  1803,  wrote  to 
the  buyer  as  follows  :  "  Owing  to  the  great  fluctation  in  Con- 
federate currency,  I  prefer  not  to  sell  for  that  money.  .There- 
fore let  me  know  what  you  will  pay  inN.  O.  lank  notes,  or 
check  on  tho  Cape  Eear  Bank,  at  Greensboro,"  and  the 
buyer  took  the  pork,  and  sent  a  check  in  the  following  words: 

"  Yanobyvillb,  K  C,  3d  Dec,  1803. 
$3088      Cashier  of  the  Bank  of  Cape  Fear,  Greensboro,  IN". 
C,  pay  to  the  order  of  Thomas  D.  Johnson,  thirty-six  hun- 
dred and  eighty  eight  dollars. 

(Signed,)        JOSEPH  J.  LAWSON,  Cash'r., 
and  endorsed  "  pay  Thomas  Sellars,  or  order, 

(Signed,)        THOMAS  D.  JOHNSON." 


CONTRACTS— I.  103 

It  was  held,  that  the  contract  did  not  require  the  buyer  to 
send  a  check  payable  in  N.  C  bank  notes,  aud  the  check  he 
sent  was  a  compliance  with  the  terms  of  it.  Sellars,  et  al.  v. 
Johnson,  05  N.  C.  R.  104. 

88.  If  a  seller  receive  a  check  drawn  on  a  bank,  which  is 
endorsed  to  him,  and  which  he  might  have  refused  as  not 
being  in  accordance  with  his  contract,  but  kept  it,  presented 
it  to  the  bank  for  payment,  and  sued  upon  it,  instead  of  repu- 
diating it  and  returning  it  to  the  buyer,  it  amounts  to  an 
acceptance  of  the  check  in  satisfaction  of  the  article  sold,  and 
the  liability  of  the  buyer  is  then  only  upon  his  endorsement. 
Ibid. 

o9.  The  true  meaning  of  a  contract  in  the  following- 
words:  "Twelve  months  from  date,  with  interest  from  date, 
I  promise  to  pay  William  Richards  $0,602  in  the  event  the 
Rhodes  Gold  mine  continues  to  prove  at  the  expiration  of 
said  time  a  good  mine,"  is  that  the  mine,  which  may  be 
proved  to  have  been  before  opened  and  worked,  continued  to 
be  as  good  a  mine  at  the  end  of  the  year  as  it  was  at  the  be- 
ginning, and  not  that  it  was  a  good  mine  in  the  estimation  of 
miuers'  without  reference  to  its  quality  at  the  time  the  con- 
tract was  made.     Richards  v.  Svhleyelmu-h,  05  N.  C.  R.  150. 

40.  The  enactment  in  the  Revised  Code,  ch.  31,  sec.  84, 
that  "in  all  cases  of  joint  obligations  or  assumptions  or  co- 
partners in  trade  or  others,  suits  may  be  brought  and  prose- 
cuted on  the  same  against  all  or  any  number  of  the  persons 
making  such  obligations,  assumptions  or  agreements,"  is  re- 
pealed in  effect  as  to  suits  upon  parol  contracts  made  after 
the  adoption  of  the  C.  C.  P.,  by  the  02d  section  of  that  Code, 
but  such  contracts  made  before  that  time  are  exempted  from 
its  operation  by  section  8,  sub.  div.  '2  of  the  same.  Merwiu 
v.  Ballard,  05  N.  C.  R.  108. 

41.  Where  it  appealed  that  the  plaintiff  on  the  1st  of 
January,  1805,  hired  his  elaves  to  the  defendant  upon  the 
express  understanding  that  he  was  to  take  Confederate  mo- 
ney in  advance,  or  whenever  he  should  apply  tor  it,  and  the 
defendant  was  always  ready  to  pay  the  Confederate  money, 
but  the  plaintiff  never  applied  for  it,  it  was  held  that  he  was 
not  entitled  to  recover  the  value  of  the  hire  of  the  slaves. 
Erwin  v.  IF.  2V.  C.  K  E.,  (55  N.  C.  R.  79. 

42.  Where  several  owners  of  land  lying  on  a  swamp,  some 
above  and  some  below  a-  mill  situated  on  it  belonging  to  A, 
bought  and  paid  for  it,  and  took  a  deed  to  themselves  in  fee 
with  the  site  and  all  rights  appurtenant  thereto,  to  be  held  in 
trust  lor  the  benefit  of  the  lands  of  which  they  were  the  own- 


104  CONTRACTS— I. 

ers,  and  to  prevent  any  mill  dam  or  other  obstruction  from 
being  placed  across  said  swamp,  to  the  damage  and  injury  of 
their  said  lands,  it  was  held,  that  the  said  purchasers  had  a 
right  to  prevent  the  erection  of  a  mill  dam  across  the  swamp 
one  hundred  and  fifty  yards  below  the  site  of  the  old  mill,  by 
A  or  by  one  who  purchased  his  land,  and  who  proposed  to 
build  the  dam  partly  on  the  land  purchased  of  A,  and  partly 
on  the  land  which  he  owned  belore.  Barnes  v.  Barnes,  05 
N.  C.  E.  201. 

43.  As  a  general  rule  every  contract  ought  to  be  enforced 
specifically,  but  an  exception  to  this  rule  is  permitted  when 
damages  can  be  recovered  at  law,  which  are  an  adequate  sat- 
isfaction, and  the  exception  is  confined  to  cases  in  which  there 
is  a  certain  measure  of  damages,  and  money  must  be  a  satis- 
factory compensation.     Ibid. 

44.  Where  A  contracted  during  the  year  1803  or  1804,  to 
convey  a  tract  of  land  to  B  for  life,  remainder  to  her  children 
in  fee,  in  consideration  of  a  number  of  negroes  then  sold  and 
delivered  by  B  to  A,  in  which  the  latter  was  a  tenant  for  life, 
and  her  children  entitled  to  the  reversion,  all  of  whom  joined 
in  said  conveyance  except  Eli,  who  was  an  infant,  and  one  of 
the  terms  embraced  in  the  contract  to  convey  said  land  being 
that  A  would  convey  the  said  lands  to  B  and  her  children 
whenever  the  infant  Eli  arrived  at  age,  and  would  make  "  a 
good  title  "  to  his  share  of  said  slaves  unto  A,  and  the  slaves 
were  held  by  A  till  their  emancipation :  held,  that  upon  the 
coming  of  age  of  Eli,  and  his  tendering  a  bond  conveying  his 
interest  in  said  slaves  to  A,  that  this  was  a  substantial  com- 
pliance with  the  contract,  and  that  A  was  bound  to  convey 
the  land,  according  to  the  terms  of  this  contract.  Calloway 
v.  Hamby,  05  N.  C.  R.  031. 

45.  Where  a  Confederate  States'  bond  was  transferred  in 
payment  of  a  debt,  and  the  assignor  promised  that  if  it  was 
not  right  he  would  make  it  so  or  pay  $10,000,  if,  in  point  of 
fact,  the  transfer  was  not  valid,  the  promise  was  absolute,  and 
the  party  was  bound  to  pay.  Bryan  v.  Heck,  07  N.  0.  li. 
322. 

40.  When  each  of  the  parties  to  such  a  contract  have 
equal  knowledge  of  the  validity  of  the  transfer,  according  to 
the  rules  of  the  treasury  department,  and  equal  means  of 
acquiring  correct  information  in  reference  in  the  same,  it  was 
incumbent  upon  the  party  promising  to  pay  to  take  such  steps 
as  were  necessary  to  make  the  transfer  valid  if  it  were  not 
so.  A  failure  to  do  so  leaves  it  to  be  inferred  that  he  was. 
content  to  be  discharged  with  the  amount  in  money.     Ibid. 


CONTRACTS— I.  105 

47.  A  contracted  to  manufacture  50,000  lbs.  of  leaf 
tobacco  for  B,  between  the  1st  day  of  May,  and  the  15th  day 
of  October,  I860,  for  which  B  was  to  pay  10  cents  per  lb. 
and  to  pay  the  taxes  and  for  the  ingredients  used  in  its  man- 
ufacture, such  payment  to  be  made  whenever  B  was  notified 
that  100  boxes  were  ready  for  market:  held,  that  the  defen- 
dants were  bound  to  have  all  the  tobacco  manufactured  on 
or  before  the  day  agreed  upon,  and  that  the  promise  of  B  to 
pay  L0  ceuts  per  lb.  and  to  pay  taxes,  &c ,  was  not  a  condi- 
tion precedent,  or  an  act  on  which  A's  undertaking  was 
made  to  depeud.     Henderson  v.  Bessent,  G8  K  0.  R.  223. 

48.  Where  it  appeared  that  the  plaintiff  sold  a  horse  to 
the  defendant  for  $125  payable  iu  Confederate  notes,  or  $100 
in  bank  notes  at  a  given  time,  at  defendant's  option,  and 
defendant  offered  to  pay  in  Confederate  notes  and  plaintiff 
refused  to  receive  them,  and  both  parties  differed  as  to  the 
contract,  and  agreed  that  the  plaintiff  should  call  at  the 
defendant's  house  and  get  $125  State  scrip  in  payment  of 
debt,  and  plaintiff  did  not  and  never  has  called,  and  defen- 
dant has  always  been  ready:  held,  that  the  parties  had  rescin- 
ded the  first  contract,  and  by  the  latter  contract  the  plaintiff 
was  to  call  for  the  same  it  was  a  condition  precedent  to  the 
payment  of  it,  and  as  he  had  not  or  lied  he  could  not  recover. 
Simmons  v.  Cahoon,  08  N.  C.  R.  303. 

40.  A  contract  to  convey  "a  certain  piece  of  land  in  the 
county  aforesaid  adjoining  the  lands  of"  A  and  B  "and  oth- 
ers, being  a  part  of  the  Alexander  tract,  supposed  to  contain 
30  or  35  acres,"  is  so  vague  and  indefinite  that  a  Court  can- 
not enforce  it  specifically.     Grier  v.  Bhyne,  00  N.  C.  R.  346. 

50.  A  sells  a  tiact  of  land  to  B,  retaining  the  title  until 
the  purchase  money  is  paid.   B  makes  a  payment  on  the  debt 

A,  and  then  sells  his  interest  to  C ;  A  aud  B  agree  to  obtain 
from  the  proper  Court  a  decree  of  sale,  which  is  made,  the 
land  sold  ami  is  purchased  by  C,  (the  title  still  being  retained 
until  the  purchase,  money  is  paid)  who  gives  his  bonds  to  A 
and  B  for  their  respective  shares.  C  being  unable  to  pay  his 
bonds,  A  brings  this  action  against  the  other  parties,  asking 
for  a  sale  of  the  land,  and  the  proper  distribution  of  the  pur- 
chase money;  the  land  is  sold  and  A  becomes  the  purchaser, 
B  claiming  a  pro  rata  share  of  the  proceeds  of  sale:  held,  that 

B,  until  he  paid  the  debt  to  A  for  the  first  purchase,  was  en- 
titled to  no  part  of  the  proceeds  of  sale;  and  further,  that  if 
tin;  land  sold  for  more  than  B  owed  A,  B  was  entitled  to  the 
surplus  and  the  surrender  of  his  note;  if  it  sold  tor  less,  B's 
note  must  be  credited  with  the  amount  it  did  sell  for.  Elliott 
v.  liobards,  TON.  C.  R.  181. 


106  CONTRACTS— I.— II. 

51.  Any  third  person,  who  without  lawful  justification, 
induces  a  party  who,  for  a  consideration,  has  contracted  to 
render  personal  service  to  another,  to  quit  such  service  and  re- 
fuse to  perform  his  part  of  the  agreement,  is  liable  to  the  party 
injured  in  damages.     Hash  ins  v.  Boyster,  70  N.  C.  II.  602. 

52.  That  the  consideration  of  a  contract  is  too  small,  or 
its  terms  unreasonable,  will  not  justify  a  Court,  for  the  bene- 
fit of  a  third  person  not  a  party  thereto,  in  setting  such  con- 
tract aside;  nor  is  the  fact  that  one  of  the  contracting  par- 
ties is  appointed  to  decide  as  to  the  performance  or  non  per- 
formance of  certain  conditions,  a  sufficient  cause  for  annulling 
and  setting  aside  the  same.     Hid. 

See  (Bills  of  Exchange  and  Promissory  Notes,  18-19 ) 
(Practice — In  Equity,  13.)  (Vendor  and  Purchaser,  2-3-4- 
0-8-10-12-13-14-15-10-17.) 

II.  SALE  OF  PERSONAL  CHATTELS. 

1.  That  the  thing  sold  was  wholly  valueless,  is  no  reply 
to  an  action  upon  a  specific  contract  for  the  price  of  such 
thing,  in  ease  it  were  accepted,  retained  and  used  by  the 
vendee.     Sapona  Co.  v.  Holt,  04  N".  C.  E.  335. 

2.  If  one  send  by  mail  an  absolute  and  specific  order  for 
certain  goods  to  a  merchant  who  sells  such  goods,  the  latter 
need  not  reply  by  mail  engaging  to  send  them;  the  contract 
will  be  complete  upon  his  at  once  complying  with  the  order. 
Crook  v.  Cowan,  04  N.  C.  II.  743. 

3.  This  is  so  even  where  the  thing  ordered  must  be  manu- 
factured by  the  merchant  before  it  is  sent,  at  least  where  it 
can  be  manufactured  without  much  delay,  ex.  (jr.,  in  case  of 
the  making  up  of  carpets,  where  the  merchant  is  a  carpet 
seller.     Ibid. 

4.  Where  the  defendant,  who  resided  near  Wilmington, 
sent,  Dec.  10,  1866,  by  mail,  an  order  to  a  carpet  merchant 
of  P>altimore  for  two  carpets  similar  to  those  which  the  mer- 
chant had  furnished  to  a  friend  of  his,  ("  good  three  ply  car- 
pet, medium  color,"  &c,  &c,  giving  size  and  proportion  of 
rooms:  "I  want  good  durable  carpets,  and  wish  you  to  have 
them  made  up ;  you  can  forward  them  to  my  address  at 
Wilmington,  N.  C.,  per  Express,  C.  O.  D.,"  &c,  &c.,)  and 
the  order  was  received  Dec.  14th,  and  the  carpets  forwarded 
by  Express,  Dec.  21st,  and  duly  received  in  Wilmington  at 
the  Express  office :  held,  that  the  contract  was  complete, 
there  being  no  need  that  the  merchant  should  have  answered 
by  mail,  engaging  to  comply  w'th  the  order.     Ibid. 


CONTRACTS— II.  107 

5.  In  an  action  to  recover  the  price  of  certain  guano  sold 
to  the  defendants  for  use  by  themselves;  it  having  been 
shown  that  the  article  was  worthless:  held,  that  the  fact  that 
one  of  the  defendants,  after  the  article  had  been  made  use  of, 
in  a  conversation  with  the  plaintiff,  promised  that,  if  the  lat- 
ter would  release  him,  he  would  pay  one-third  of  the  price, 
in  order  to  avoid  a  law  suit,  was  no  evidence  of  a  new  con- 
tract, and,  semble,  also,  none  of  the  original  contract;  but 
was  merely  an  unaccepted  offer  to  compromise  ;  and  that  if 
the  article  were  worthless,  the.  plaintiff  could  not  recover:  a 
re-delivery  of  it  by  the  defendants  having  been  rendered 
impossible  because  it  had  been  destroyed  by  the  means 
resorted  to  in  order  to  ascertain  its  value;  or  unnecessary, 
because  being  wholly  without  mercantile  value,  it  need  not 
have  been  returned.     Smith  v.  Love,  04  N.  0.  K.  439 

0.  Where  a  contract  for  the  purchase  of  tobacco  required 
certain  acts  to  be  done  in  regard  to  it  (such  as  payment  of 
the  United  States  tax,  a  permit,  &c.,)  before  it  was  accepted, 
and  afterwards  the  defendant  accepted  it,  knowing  that  such 
acts  had  uot  been  done:  field,  that  he  could  not  resist  pay- 
ment of  the  price  agreed  upon-,  by  alleging  that  conditions 
had  not  been  performed.  JJodson  v.  Gilmer,  U4  N.  0.  11.  512. 

7.  Nor,  if  the  doing  of  such  acts  was  suspended  with  the 
consent  of  the  United  States  officers,  and  was  bona  fide,  and 
not  intended  to  defraud  the  government  of  its  revenue,  al- 
though the  transaction  may  have  been  irregular, — could  the 
defendant  shelter  himself  from  liability,  by  showing  such  omis- 
sion to  have  been  in  violation  of  law.     Ibid. 

8.  Whether  one  possesses  information  superior  to  that  of 
auother,  in  regard  to  the  subject  matter  of  a  contract,  is  a 
question  of  fact,  and  not  of  law.  Smith  v.  Webb,  64  N.  C. 
K.  541. 

9.  Where  the  defendants  contracted  to  sell  to  the  plain- 
tiff all  the  fishing  materials  belonging  to  them  as  a  firm,  and 
removed  a  part  thereof,  the  plaintiff  is  entitled  to  recover  the 
value  of  the  part  thus  removed,  whether  the  removal  took 
place  before  or  after  the  sale.  Wilson  v.  Holleij,  GO  N.  C. 
li.  407. 

10.  Upon  the  trial  of  an  issue  involving  the  value  of  a 
jackass,  ii  is  competent  to  prove  Ins  reputation.  McMillan 
v.Davis.  66  N.  0  R.539. 

11.  When  a  bargain  is  made  for  the  purchase  of  goods, 
and  nothing  is  said  about  payment  or  delivery,  the  property 
passes  immediately,  so  as  to  cast  on  the  purchaser  all  future 
risk,  if  nothing  remains  to  be  done  to  the  goods,  although 


108  CONTRACTS— II.— III. 

such  purchaser  cannot  take  them  away  without  paying  the 
price.  Therefore,  a  levy  of  an  execution  on  a  horse  which 
had  been  sold  but  not  delivered,  as  the  property  of  the  pur- 
chaser of  such  horse,  was  valid.  Jenkins  v.  Jarrett,  70  N. 
C.  K.  255. 

12.  Where  a  person  purchased  a  worthless  article  of  a 
fertalizer,  and  gave  his  note  for  the  purchase  money,  and  af- 
terwards paid  the  same,  with  full  knowledge  of  the  facts:  it 
was  held,  that  he  could  not  recover  the  money  paid,  although 
paid  under  threats  of  a  law  suit.  Matthews  v.  Smith,  67  N. 
C.  R.  374 

13.  In  an  action  to  reaover  the  stipulated  price  of  certain 
castings,  the  defendant  can  show  that  the  castings  were  not- 
such  as  he  contracted  for,  and  were  not  suited  to  the  purposes 
for  which  they  were  designed;  and  the  jury,  in  their  verdict, 
can  allow  the  defendant  the  difference  of  value  between  the 
castings  delivered  and  those  contracted  for.  Howie  v.  Ilea, 
70  N.  C   R.  559. 

14.  In  such  case  the  defendant,  by  receiving  the  castings, 
so  that  he  cannot  return  them,  does  not  abandon  his  right 
either  to  sue  for  a  breach  of  contract,  or  to  insist,  in  his  de- 
fence, on  a  reduction  of  the  price  agreed  to  be  paid.     Ibid. 

15.  A  promise  to  pay  certain  debts  by  the  purchase  of 
goods,  which  the  owner  of  tbe  goods  at  the  time  owed,  is  a 
sufficient  consideration  to  support  the  sale,  if  the  contract 
was  bona  fide  made,  notwithstanding  tbe  purchaser,  when  the 
contract  was  entered  into  was  an  infant  and  without  means. 
Hislop  v.  Hoover,  08  N.  0.  R.  141. 

See  (Contracts — Construction  of  contracts  and  their 
enforcements,  27,  23,  29,  30.)     (Sale — Sale  of  Slaves.) 

III.     AS  AFFECTED  BY  THE  STATUTE  OF  FRAUD. 

1.  The  Auctioneer  is  the  agent  of  both  the  seller  and 
purchaser:  therefore,  upon  a  tract  of  land  being  bid  off  at 
auction  by  one  who  is  present,  the  auctioneer  is  his  agent  for 
the  purpose  of  directing  his  name  to  be  signed  to  an  agree- 
ment to  purchase      Cherry  v.  Long,  Phil.  L.  R.  400. 

2  A  memorandum  by  the  clerk  of  the  auctioneer  *'  Ray- 
ner  Tract  to  James  S.  Long  at  $40  per  acre,"  by  order 
of  the  auctioneer,  in  a  case  where  it  was  shown  that  the 
expression  "  Rayner  Tract"  was  a  well-known  designation, 
held,  under  the  circumstances,  to  be  sufficient,  witbin  the 
statute  of  frauds.     Ibid. 

3.     A  memorandum  of  a  contract  to  convev  the  laud  of  a 


CONTEACTS— III  —IV.  109 

principal  signed  by  an  agent  in  his  own  name  is  a  compliance 
with  the  satute  of  frauds,  if  it  be  expresed  that  the  contract 
was  made  for  the  principal.  Phillips  v.  Hooker,  Phil.  Eq.  E. 
193. 

4.  A  memorandum  setting  forth  that  the  agent  agreed 
for  "Mrs.  H.  to  make  a  deed  for  her  house  and  lot  North  of 
Kinston,"  to  the  plaintiff,  is  not  void  as  being  too  vague  and 
indefinite — it  being  admitted  by  Mrs.  H.  (the  defendant,)  in 
her  answer,  that  she  owned  but  one  house  and  lot  in  the 
county,  and  that  the  agent  had  been  authorized  to  sell  her 
house  and  lot;  and  she  is  bound  to  convey  in  J ee  simple. 
Ibid. 

5.  A  promise  by  a  third  person  to  answer  for  the  debt 
of  another  which  other  is  not  thereupon  discharged  from  all 
liability — is  within  the  Statute  of  Frauds,  and  must  be  in 
writing.     Combs  v.  Harshaw,  63  N.  0.  E.  198. 

6.  That  there  is  a  consideration  for  such  promise,  does 
not  afiect  this  rule.     Ibid. 

7.  Wh^re  there  is  a  valid  contract  for  the  sale  of  the  land 
betwixt  A  and  B,  as  principals,  held,  that  C  cannot  be  sub- 
stituted to  the  rights  or  duties  of  either  party  without  au 
agreement  in  ivriting.     Love  v.  Cobb,  63.  N.  0.  E.  324. 

8  A  parol  agreement  by  an  administrator,  that  if  a  cer- 
tain creditor  will  pay  costs,  &c,  the  former  will  allow  his 
claim  as  a  set-off  against  a  debt  due  to  the  administrator, 
upon  a  purchase  of  the  assets  after  the  death  of  the  deceased, 
is  void  under  the  Statute  of  Frauds.  Bansom  v.  McCiees, 
64  N.  0.  E.  17. 

9.  Where  the  parties  to  a  covenant  for  the  conveyance  of 
land  in  consideration  of  work  and  labor  to  be  done  by  the 
covenantee,  agreed  by  parol,  that  the  title  should  also  be 
held  as  an  indemnity  against  loss  to  the  covenantor  in  con- 
seopience  of  his  surety-ship  for  the  covenantee :  held,  that 
the  agreement  was  void,  under  the  Statute  of  Frauds.  Har- 
per v.  Spainhonr,  64  N.  0.  E.  629. 

See  (Indians  2,  3) 

IV.    VOID  AND  VOIDABLE  CONTRACTS. 

1.  Where  the  plaintiff  sold  mules  to  an  agent  of  the  Con- 
federate government  at  a  reduced  price,  giving  as  his  reason 
for  thus  selling  them,  that  they  were  to  be  used  in  the  mili- 
tary employment  of  such  government :  held,  that  the  contract 
was  against  public  policy,  and,  therefore,  that  no  recovery 
could  be  had  on  a  bond  given  for  the  payment  of  the  purchase 
money.     Mart'ui  v.  McMillan,  63  N.  C.  E.  486. 


110  CONTRACTS— IV.— CORONER. 

2.  Contracts  existing  between  citizens  and  residents  of 
the  northern  States  and  citizens  of  this  State,  prior  to  the 
commencement  of  the  late  war,  were  suspended  during  the 
existence  of  hostilities.  Blackwett  v.  WUlard,  Go  N.  C.  It- 
555. 

3.  Where  a  citizen  and  resident  of  New  York  had  a  suit 
pending  in  this  State  previous  to  the  late  war,  and  during  the 
war,  his  debtor  here  pays  up  his  indebtedness  to  the  attorney 
or  agent  of  such  non-resident:  held,  that  such  action  was 
void,  and  that  the  relation  of  attorney  and  client  was  termi- 
nated by  the  war.     Ibid. 

4.  Any  securities  held  by  a  citizen  and  resident  of  New 
York  previous  to  the  late  war,  upon  persons  resident  in  this 
State,  could  not  be  extinguished  durante  hello,  either  through 
the  agency  of  the  courts  here,  or  through  the  former  agents 
and  attorneys  of  such  non-resident.     1  bid. 

5.  Therefore,  where  a  debtor  to  a  citizen  or  resident  of 
New  York  paid  off  said  claim  to  a  Clerk  and  Master  here  in 
Confederate  currency  before  such  currency  had  depreciated 
to  any  extent,  such  payment  is  a  nullity.     Ibid. 

0.  Courts  of  justice  not  only  redress  fraud,  but  seek  to 
prevent  fraud  by  removing  temptation.  Therefore  Presidents 
and  Directors  of  Railroad  Companies  are  not  allowed  to  buy 
up  and  speculate  upon  claims  against  such  companies — such 
contracts  being  in  every  respect  against  good  morals,  and 
consequently  against  public  policy.  McDonald  v.  Hauyhton, 
10  N.  C.  R.  393. 

See  (Accord  and  Satisfaction.)  (Bills  of  Exchange  and 
Promissory  Notes  10,  11,  13.  14,  15,  16,  20.)  (Confederate 
Monev  2/3,  4,  7,  15.)  (Public  Law  10,  11,  12,  13,  1G,  17r 
2G,  27,  31,  32,  34,  35.)  (Vendor  and  Purchaser  2,  3,  4,  G, 
8,  10,  12,  13,  14,  15,  16,  17) 


CORONER. 

Under  the  Constitution,  art.  4,  sec.  30,  where  there  is  no 
coroner  in  the  county,  the  Clerk  of  the  Superior  Court  may 
appoint  one  to  execute  process  against  the  sheriff,  where 
he  is  interested  in,  or  a  party  to  the  suit;  or  in  such  case, 
under  the  C  C.  P.,  sec.  73,  may  issue  to  the  sheritf  ofau 
adjoining  county.  Witkousluj  &  Rintels  v.  Wasson,  09  N.  C 
R.  38. 


CORPORATION.  lit 


CORPORATION. 

1.  The  return  of  a  sheriff  upon  process  served  on  an  offi- 
cer of  a  corporation,  need  not  designate  the  office  filled  by 
such  person.  In  any  event  such  return  is  eured  by  judgment. 
Crawford  v.  Bank  of  Wilmington,  Phil   L  R.  136. 

2.  The  failure  of  a  inutnal  insurance  company  does  not 
constitute  a  "failure  of  consideration,"  so  as  to  defeat  an  action 
upon  a  premium  note  given  by  a  person  insured  therein 
Coniqlan  I  v.  A.  C.  Mutual  Life  Insurance  Company,  Phil. 
Eq.  R.  341. 

3  Such  a  company  after  its  insolvency  loses  the  power  of 
insisting  upon  forfeitures  of  stock  by  its  members  for  non- 
payment or  otherwise.     Ibid. 

4.  If  such  a  compauy  before  insolvency  treat  a  member 
who  has  failed  to  pay  as  if  he  were  still  a  member,  this  is  a 
waiver  of  the  right  to  declare  his  stock  forfeited  for  the  non- 
payment.    Ibid. 

5.  A  resolution  by  such  a  company  to  wind  up  its  affairs 
is  equivalent  to  an  assessment  of  100  per  cent  on  the  pre- 
mium notes  in  order  to  enable  it  to  meet  its  liabilities,  &e. 
Ibid. 

().  The  holders  of  policies  in  insolvent  mutual  insurance 
companies  cannot,  when  sued  upon  their  premium  notes, 
claim  that  the  values  of  their  policies  (supposing  that  the 
same  can  be  ascertained?)  shall  be  set  off  in  equity  agaiust 
their  liabilities.     Ibid. 

7.  The  act  of  1858-'59,  eh.  142,  does  not  purport  to  extin- 
guish the  Cape  Fear  and  Deep  River  Navigation  Company; 
and  does  not  in  fact  extinguish  it.  C.  F.  de  I).  R  Co ,  v. 
Costen,  <>3  N.  C  R.  264. 

8  The  statute  of  Limitations  upon  a  cause  of  actiou 
against  a  stockholder  in  that  company,  for  the  balance  of  his 
subscription  after  a  sale  of  his  stock,  begins  to  inn  from  the 
time  of  such  sale,  and  not  from  the  time  of  the  last  assess- 
ment upon  the  stock.     Ibid. 


112  COSTS— I. 


COSTS. 


By  whom  to  be  paid. 


I    Security  for  costs  and  suits  in  forma 
pauperis. 


I.     BY  WHOM  TO  BE  PAID. 


1.  Costs  awarded  upon  retaxation  are  virtually  included 
in  the  original  judgment  in  a  cause.  Walton  v.  Sugg,  Phil. 
L.  E.  98. 

2.  Notice  of  retaxation,  if  necessrry  at  all,  may  be  served 
upon  au  attorney  in  the  suit  to  which  the  costs  are  claimed 
to  be  incident.     1  bid. 

3.  Where  several  defendants  were  included  in  the  same 
indictment,  which  had  been  found  during  the  late  war  and 
continued  until  after  the  courts  were  reopened;  upon  a 
motion  to  retax  costs :  held,  that  the  State  was  entitled  to 
but  one  tax.  That  the  clerk  at  each  continuance  was  enti- 
tled to  but  one  fee  for  continuance.  That  as  but  one  capias, 
including  the  names  of  all  the  defendants,  had  been  issued, 
the  clerk  was  entitled  to  but  one  fee  for  capias-  That  the 
clerk  was  entitled  to  but  one  fee  for  the  indictment.  That 
he  was  entitled  to  a  separate  fee  for  judgment  against  each 
defendant.  That  he  was  not  entitled  to  fees  for  subpo?na$ 
issued  from  term  to  term ;  but  to  ouly  one  fee  for  those  orig- 
inally issued,  and  to  another  for  those  issued  at  the  reopen- 
ing of  the  courts.     State  v.  Gwgnn,  Phil.  L.  E.  445. 

4.  Where  a  bill  had  been  tiled  to  rescind  a  deed  of  release 
and  quit-claim  for  a  slave,  on  au  allegation  of  fraud  :  upon 
the  emancipation  of  the  slave  by  act  of  law,  the  court  de- 
clined to  hear  the  cause  and  ordered  the  bill  to  be  dismissed 
without  prejudice  and  that  each  party  should  pay  his  own 
eosts,  as  if  the  suit  had  abated.  Kidd  v.  Morrison,  Phil. 
Eq.  K.,31. 

5.  Au  administrator  will  not  ordinarily  be  allowed  costs 
in  a  cause  constituted  by  him  for  the  purpose  of  having  the 
instructions  of  the  court  upon  questions  which  with  reason- 
able certainty  may  be  solved  by  counsel ;  nor  where  they 
are  incurred  by  making  unnecessary  parties.  Colson  v. 
Martin,  Phil.  Eq.  E.  125. 

6.  Partial  allowance  of  costs  in  such  a  cause  under  pecu- 
liar circumstances.     Ibid. 

7.  No  one  is  to  be  regarded  as  a  in-osecutor,  under  the 
Statute  rendering  prosecutors  liable  to  pay  costs,  unless  his 
name  is  marked  as  such  on  the  bill  of  indictment.  State  v 
Lupton,  63  N.  C.  E.  483. 


COSTS— I.  113 

8.  The  prosecutor  upon  an  indictment  for  stealing  a  mule, 
found  at  Pall  Term,  1867,  and  tried  at  Spring  Term,  1809, 
may  upon  proper  certificate  by  the  Judge  below,"  be  ordered 
by  him  to  pay  the  costs  of  the  case!  /State  v.  Darr,  03  N. 
C.  K,  516. 

9.  Heretofore,  the  Superior  Courts  have  had  no  power  to 

give  judgment  for  such  of  the  costs  upon  a  State  warrant  as 

accrued  before  the  magistrate  who  tried  it  and  failed  to  give 

judgment  for  such  costs.     Now,  the  matter  is  regulated  by 

Act  of  10th  April,    1800,  "  Proceedings  iu  criminal  cases," 
giving  them  control  thereof*  State  v.  Locust,  03  N.  C  R  574. 

10.  When  one  of  the  parties  to  a  cause  is  not  ready  for 
trial,  and  upon  his  application,  it  is  ordered  to  be  continued 
for  him  "on  payment  of  costs,"  it  means  the  costs  of  the 
term,  and  not  the  whole  costs  of  the  action.  Kirkham  v. 
Dixon,  05  N".  C.  K.  171). 

1 1 .  Where  a  party  has  a  witness  summoned  in  his  behalf, 
and  the  said  witness  is  in  attendance  upon  the  Court,  but  is 
neither  sworn,  tendered  or  examined:  held,  that  according  to 
the  practice  in  this  State,  the  attendance  ot  said  witness 
should  be  taxed  against  the  party  by  whom  he  was  summon- 
ed.    Loftm  v.  Baxter,  00  N.  C  K.  340. 

12.  Where  a  material  witness  had  been  summoned  and  is 
not  present  at  the  trial,  but  had  theretofore  been  iu  attend- 
ance, and  the  question  is  made  in  apt  time,  the  party  sum- 
moning the  witness,  has  the  right  to  tax  the  attendance  of 
such  witness  against  his  adversary  only,  in  case  of  satisfactory 
proof  of  the  materiality  of  the  witness,  and  that  his  absence 
was  on  account  of  sickness  or  other  sufficient  cause.     Ibid. 

13.  When  an  execution  for  costs,  incurred  in  this  Court, 
has  been  returned  unsatisfied,  and  the  party  is  insolvent  and 
entitled  to  moneys,  in  the  Clerk's  office  of  this  Court,  order- 
ed, that  the  office  costs  be  deducted  from  moneys  so  due  him. 
Clerk's  Office  v.  Bank  of  Cape  Fear,  00  N.  C.  E.  214. 

14.  Although  such  execution  debtor  is  adjudicated  a  bank- 
rupt, it  will  not  affect  this  conclusion,  as  the  assignee  quoad 
hoc,  takes  subject  to  all  the  equities  of  the  bankrupt.     Ibid. 

15.  Where  the  plea  of  "fully  administered"  is  found  for 
the  defendant  and  a  judgment  qnando  rendered  for  the  plain- 
tiff, the  defendant  is  entitled  to  judgment  against  the  plaintiff 
for  his  costs.     Lewis,  Executor,  v.  Johnson,  07  JST.  C   E.  38. 

10.     Where  there  is  a  petition  for  writs  of  recordari  and 
supersedeas,  ami  the  prayer  is  refused  by  a  Judge  at  Cham- 
bers, and  appeal  to  this  court,  and  procedendo  ordered  to  the 
•end  the  prayer  of  petitioner  be  granted,  and  the  proceeding 
8  " 


114  COSTS— I.— II. 

was  ex  parte,  and  defendant  had  no  notice  :  Held  to  he  errorT 

to  enter  up  judgment  against  the  defendant   for  costs  of 
Supreme  Court.     Should  the  petitioner  liually  succeed  in 
defeating  the  recovery  of  the  plaintiff  in  the  original  actions,, 
then  he  will  be  entitled  to  have  his  costs  in  this  court  taxed 
against  said  plaintiff.     Caldwell  v.  Beatty,  68  K  C.  R,  399. 

17.  A  defendant  who  is  an  administrator,  is  entitled  to 
costs  in  an  action  wherein  the  plea  of  "  fully  administered  " 
has  been  found  for  him,  and  adjudgment  qnando  rendered. 
See  67  K  U.  Rep  38.     Lewis  v.  Johnston,  67  N.  C.  R.  392. 

18.  The  Supreme  Court  has  no  power  to  compel  by  pro- 
cess of  attachment,  a  defendant  to  pay  a  judgment  against 
him  for  costs  recovered  by  a  plaintiff  in  this  court.  Phillips 
v.  Trezevant,  70  JN".  C.  R.  176. 

19.  Tickets  giveu  out  by  Clerks  of  Superior  Courts  in 
State  cases,  are  only  evidence  that  the  witnesses  attended ;. 
and  until  the  Judge  by  whom  the  case  was  disposed  of  shall 
pass  upon  the  costs,  including  witness  fees,  and  declare  how,, 
when  and  by  whom  such  costs  shall  be  paid,  the  County 
Commissioners  cannot  know  their  liability,  and  are  not 
responsible  therefor.  Moore  v.  Commissioners  of  Alamance* 
70  N.  C.  R.  340. 

See  (Arbitration  and  Award— Where  an  award  is  to  be 
sustained  or  set  aside  2.)     (Contempt  9.) 

II.     8ECUKITY  FOE  COSTS  AND  SUITS— IN  FORMA  PAUPERIS. 

1.  Under  the  act  of  1868-'9,  sec.  1,  ch.  96,  according  to 
its  proper  construction,  a  Judge  or  Clerk  of  the  Superior 
Court  may,  in  cases  within  the  jurisdiction  of  said  Court, 
make  an  order  authorizing  any  person  complying  with  the 
provisions  of  said  act  to  sue  in  forma  pauperis.  A  Justice 
of  the  Peace  has  like  power,  in  cases  within  the  jurisdiction 
of  his  court.     Rowark  v.  Gaston,  67  N.  C.  JR.  201. 

2.  An  undertaking  on  appeal,  given  under  sees.  303  and 
414  of  C.  O  P.,  though  not  so  expressed,  is,  by  implication, 
taken  to  be  made  with  the  appellee.  Clerk's  office  v.  Huff- 
steller,(i7  N.  C.  R  449. 

3.  Such  undertaking  secures  the  costs  of  the  appellee, 
but  not  those  of  the  appellant,  Therefore,  when  there  was 
judgment  in  the  Supreme  Court  in  favor  of  the  appellant,  his 
sureties  are  not  liable  on  their  undertaking  for  his  costs* 
when  such  costs  cannot  be  made  out  of  the  appellee,  or  their 
principal.     Hid. 

4.  Prosecution  bonds,  and  undertakings  on  appeal,  being 


COSTS— II.— COUNTER  CLAIM.— COUNTIES,&c.  115 

sent  up  as  part  of  the  record,  summary  judgment  may  be 
taken  upon  them,  as  before  the  adoption  of  0.  0.  P.     Ibid. 

5.  Residents  of  other  States  in  the  Union  can  sue  in  the 
Courts  of  this  State,  in  forma  pauperis.  Code  of  Civil  Pro- 
cedure, sec.  72.     Porter  v.  Jones,  68  N.  C  R.  320. 

0.  The  Clerk  of  the  Superior  Court,  as  well  as  the  Judge, 
may  make  an  order  for  a  plaintiff,  whether  an  adult  or  an 
infant,  suing  by  his  guardian,  to  sue  in  forma  pauperis  in  the 
Superior  Court  upon  complying  with  the  provisions  of  the  Act 
of  1808-'09,  eh.  80,  sec.  1.  *  Brendle  v.  Heron  ct  al ,  08  X.  C. 
R.  496, 

See  (Appeal — Prom  Superior  to  Supreme  Courts,  and 
note  thereto,  52.)  (Practice — Non  suit  and  Nolle  prosequi, 
3) 


COUNTER  CLAIM. 
See  (Pleading — Counter  claim  )    (Set-off—  At  Law,  6-7-8.) 


COUNTIES  AND  COUNTY  COMMIS- 
SIONERS. 

1.  Claims  against  Counties  must  be  presented  for  pay- 
ment and  refused,  before  an  action  can  be  maintained  because 
of  their  non-payment.  Love  v.  Commissioners  of  Chatham 
County,  04  N.  C.  R.  700. 

2.  Where  the  complaint  contained  no  averment  of  such: 
demand  and  refusal,  judgment  was  arrested.     Ibid. 

3.  "All  acts  and  proceedings  by  or  against  a  county,  in  its 
corporate  capacity,  should  be  in  the  name  of  the  Board  of 
Commissioners"  Acts  of  1808,  ch.  20.  Askew  v.  Pollock, 
60  N.  C.  R.  49. 

4.  An  order  to  show  cause,  which  is  in  the  nature  of  an 
alternative  writ  of  mandamus,  ought  not  to  be  directed  to  the 
individuals  composing  the  Board  of  Commissioners.  It  is 
ouly  in  the  case  ot  disobedience  that  they  can  be  proceeded 
against  individually.     Ibid. 

5.  An  act  of  the  General  Assembly,  authorizing  the  peo- 
ple of  a  County  to  take  stock  in  a  Railroad  Company,  and  to 
determine  the  question  by  a  popular  vote,  and  tax  themselves 
to  pay  for  it,  is  constitutional.     Hill  v.  Commissioners  o 
Forsythe,  07  N.  C.  It.  337. 


116    COUNTIES  AND  COUNTY  COMMISSIONERS. 

<»  I " poii  a  cote  giveu  before  the  adoption  oftbe  present 
Constitution,  by  tbe  chairman  of  a  county  court,  expressed 
tn  be  for  the  county,  partial  payments  were  made  by  the 
Board  of  Commissioners  before  suit  brought:  held,  that  it 
was  not  necessary  for  the  plaintiff  to  show  that  the  said  chair- 
man had  authority  to  give  the  note,  or  demand  and  notice 
before  suit.     Green  v.  Com'rs  of  Cherokee,  <>7  N.  0.  R.  117. 

7.  The  Act-  of  lS7'J-7.'»,  chap.  143,  which  changes  the  di- 
viding line  between  the  counties  of  G-ranville  and  Franklin, 
and  thereby  adds  a  portion  of  the  territory  of  the  former  to 
the  latter  county,  is  constitutional,  not  being  necessarily  in 
conflict  with  the  provision  of  the  5th  section  of  the  2d  article 
o<  the  Constitution  relating  to  the  Senatoriol  Districts,  nor 
with  the  provision  of  the  6th  section  of  the  same  article, 
which  relates  to  the  apportionment  of  members  in  the  Bouse 
of  Representatives.  Commissioners  of  Granville  County  v. 
Ballard,  <><>  N.  0.  R  18. 

S.  The  Act  of  1872-73,  chap.  143,  changing  the  dividing 
lip.es  between  the  counties  of  Granville  and  Franklin,  and 
thereby  adding  a  portion  of  the  territory  of  the  former  to  the 
latter  county,  is  not  unconstitutional,  and  the  carrying  out  of 
its  provisions  cannot  be  enjoined  at  the  instance  of  a  creditor 
on  behalf  of  himself  and  ihe  other  creditors  of  the  former 
county.     Moore  et  al.  v.  Ballard,  69  N.  0.  R.  21. 

0.  When  a  few  of  a  class  are  permitted  to  sue  for  a  whole 
class,  and  especially  when  permitted  to  sue  for  the  public, 
they  will  not  be  allowed  technical  advantages  which  involve 
a  breach  of  faith.  Therefore,  it  is  no  good  defence  to  a  suit 
on  the  bonds  issued  to  pay  for  stock  subscribed  for  by  a 
county  in  a  certain  railroad,  that  the  agent  authorized  to 
make  such  subscription,  instead  of  subscribing  for  the  stock 
himself,  purchased  the  same  from  a  third  person.  Street  v. 
County  Commissioners  of  Craven,  70  N  C.  R.  (541. 

10.  Nor  is  it  a  valid  defence  that  the  county  issued  its 
own  bonds  to  pay  such  subscription  instead  of  negotiating  a 
loan,  as  empowered  to  do  by  the  Act.     Ibid. 

11.  When  by  the  act  authorizing  a  county  to  subscribe 
for  stock  in  a  railroad,  it  is  provided  that  such  county  may 
"levy  such  taxes  annually  as  may  be  sufficient  to  pay  the 
amount  of  such  loan  and  interest  thereon,"  the  Board  of 
Commissioners  of  the  county  have  the  power  to  lay  a  tax  of 
$2  on  every  $100  of  property.    J  bid. 

1*2.  Equity  will  enjoin  no  one  to  make  an  iniquitous 
defence.  Therefore,  a  Board  of  County  Commissioners  are 
not  compelled  to  plead  the  statute  of  limitations,  even  when 
such  plea  would  be  a  valid  defence.     Ibid. 


COUNTY  TREASURER.— COVENANT. 

Mandamus  2,  4.  5,  7.  11.  12,  14.  15,  10.  22,  J     24, 
25,  26,  27,  28,  29,  31,    -  nent   7       P  iblic  i 

11,  12,  13,  14.  15,  16,  17.  31,  32,  36.) 


DUNTY    TREASUFZ 

1.     The  Constitution  in  art.  7,  under  the  bead  "Muni    - 
pal  Corporations "  pi  for  the        Hon  biennially  in  ea 

€  a  Treasurer,  I    \     er  of  Deeds,  &c>,  and  as  the 
-  nothing  in  that  article  or  any  other  to  extend  the  term 
office  of  Treasurer  elected  at  the  first  election  in  1868  beyond 
two  years,         term  expired  in  1870.     AdtrhoU  v.  McKi  .  I  5 
X.  C   B  257. 

The  term  of  of  office  of  a  Treasurer  appointed  by  *   ■ 
Board  of  Commissioners  in  a  county  to  till  a  \a<  is  only 

t  of  the  unoccupied  term  of  his  prede  7 /ye-/. 


COVENANT. 

1.     A  covenant  not  to  prosecute  the  suit  to  judgment  ag 
him,  given  to  one  of  two  nu       -  of  a  prom  note,  upon 

consideration  of  his  having,  pending  such  suit,  paid  a  part 

the  note  sued  upon,  does  not  extinguish  the  <:e!,t  as,  to  the 
other  maker.     Winston  v.  Dolby,  64  N.  C.  I:  2 

_'.     In  a  €  doubt,  an  instrument  will  be  construed  as 

a-  itnot  to  stir,   i  mt!  jfrr  than  as  a  release.     Russtttw. 

Addert     .  U  N   C.  JJ  417. 

The      -ration  of  a  covenant  not  to  sue,  was  formerly, 
that,  after  the  creditor  had  taken  judgment  for  bis  debt,  t 
venantee  resorted  to  equity  for;-  e  of 

■nt.  in  the        rse  of  which  he  -'-ted, 

not  only  from   ps       .  any  thing  more  directly,  but,  if  tin 
we  <.  by  restraining  the  creditor  from  collecting 

amount  out  of  them,  its  that  would  sub;  venantee  to 

their  action,  and  thus  violate  the  covenant  ii 
tin  ei  prim  ipal  oW  .  g  the        ec- 

tion  of  more  than  an  aliquot  part  of  the  deli*.  I  any  amoo  I 
that  would  subject  the  covenantee  to  an  action  for  contribu- 
tion.    Jh'l 

4.     Under  the  C.  0.  P.  the   lame  relief  may  be  had 
torn nter-' ia >i„.  -       -  *■>  put  the  judg        I    in  the  form   o4 


US  COVENANT. 

separate  one  against  the  several  other  principals,  for  sich  an 
amount  of  the  debt  and  interest  as  would  not  give  them  a 
right  of  action  against  the  covenantee.     Ibid. 

5.  A,  B  and  0  enter  into  a  co-partnership  with  a  capital 
of  $8,400  A  sells  out  to  B,  who,  after  reciting  that  the  con- 
cern had  incurred  a  debt  for  capital  stock,  for  which  A,  B 
and  C  "were  equally  liable,"  covenanted  to  "assume  the  pay- 
ment of  all  liabilities  incuned  b>  the  said  A  on  account  of 
the  aforesaid  business,"  and  B  further  agreed  "  to  pay  off  and 
discharge  all  the  liabilities  incurred  by  said  A  on  account  of 
the  aforesaid  business,  so  that  the  said  A  shall  come  to  no 
loss  or  damage:"  held,  that  B*was  responsible  to  A  for  his 
share  of  the  capital  stock,  and  that  the  share  of  each  was  a 
charge  against  the  co  partnership  business.  Bledsoe  v.  Nixon. 
68  N".  C  R.  521. 

0.  In  an  action  for  the  breach  of  a  covenant  of  seizin, 
the  general  rule  that  the  vendee  recovers,  as  damages,  the 
price  paid  fur  the  land,  with  interest  from  the  time  of  pay- 
ment, is  subject  to  many  modifications,  as  where  his  (the 
vendee's)  loss,  in  perfecting  the  title,  has  been  less  than  the 
purchase  money  and  interest,  he  can  only  recover  for  the  ac- 
tual injury  sustained.  Farmer's  Bank  of  North  Carolina  v. 
Glenn  and  Wife,  08  N.  C.  R.  35. 

7.  And  if,  after  the  sale  to  the  vendee,  the  vendor  perfects 
the  title,  such  subsequently  acquired  title  enures  to  the  ven- 
dee by  estoppel ;  which,  being  a  part  of  the  title,  may  be 
given  in  evidence  without  being  specially  pleaded.     Ibid. 

8.  A  enters  into  a  covenant  to  purchase  of  B  certain 
lands,  at  the  price  of  $2,500,  to  be  paid  by  the  surrender  to 
B  of  a  note  held  by  A  against  him  for  $1,700,  payable  in 
specie  or  its  equivalent,  and  A  promising  to  pay  (or  secure) 
the  balance  ot  the  purchase  money  for  the  land  to  0  :  held, 
that  A  was  not  entitled  to  any  premium  on  the  note  for 
$1,700  agreed  to  be  surrendered,  as  by  the  agreement  to 
surrender,  the  value  of  that  note  as  weli  as  the  price  of  the 
land  was  determined  by  the  parties.  Jarrat  v.  Wilson,  70 
N.  0.  R.  401. 

9  Where  a  covenant  is  not  to  be  performed  on  the  land, 
but  concerns  it,  the  covenant  will  be  enforced  against  an 
assignee  of  the  covenantor  with  notice.  Norfleet  v.  Cromwell, 
70  N.  0.  R.  034. 

10.  If  the  party  from  whom  an  assignee  purchases  can- 
not complain  of  an  alleged  misuser  of  an  easement,  the 
assignee  cannot,  as  he  stands  in  the  shoes  of  him  from  whom 
he  purchased.     Ibid. 

Sec  (Draining  Wet  Lands  2,  3,  5  ) 


CURTESY.— CUSTOM.— DAMAGES.  119 


CURTESY. 

See  (Husband  and  Wife— Husbaud's  interest  in  his  wife's 
property  2,  3.) 


CUSTOM. 

1 .  "Where  there  are  two  places  upon  a  railroad  for  the  recep- 
tion of  freight,  one  called  the  depot  proper,  the  other  a  plat- 
form a  half  mile  distant  from  the  depot  proper,  where  heavy 
and  bulky  articles  were  received  and  deposited  for  shipment; 
and  there  was  evidence  tending  to  show  that  a  quantity  of 
cotton,  (the  subject  matter  in  controversy)  had  beendeliv- 
ered  at  the  platform;  held,  that  under  the  circumstances  of 
this  case,  the  defendant  had  a  right  to  ask  a  witness  the 
question,  "Where  was  the  customary  place  to  deliver  cotton 
to  the  W.  C-  &  R  R  R  ,  iu  Charlotte?"  and  also  the  question, 
"where  was  the  Railroad  depository  of  cotton:"  and  that  it 
was  erroneous  in  the  court  to  exclude  such  testimony. 
Homesly  v.  Elms,  66  N.  C  R.  330 

See    (Evidence — Admissions,    Declarations    and   Acts  of 
parties  and  privies,  3.) 


DAMAGES. 

A  purpose  to  damage  does  not  make  an  act,  otherwise 
lawful,  injurious,  in  legal  sense.  Thornton  v.  Thornton,  63 
KCK  211. 

2.  Iu  an  action  of  covenant,  for  the  non-payment  of  a  cer- 
tain amount  borrowed  iu  bank  bills,  the  measure  of  damages 
is  the  value  of  such  bills  when  obtained,  in  coin,  and  evidence 
as  to  the  value  of  the  property  which  the  covenantor  after- 

. -wards  purchased  therewith,    is  not  competent.      Harris   v. 
Davis,  64  N   C.  R.  574. 

3.  Damages  for  not  fulfilling  a  contract,  that  was  to  have 
been  performed  in  October  1865,  may  be  estimated  in  cur- 
rency, oud  need  not  at  first  be  estimated  in  gold,  then  adding 
depreciation.     Patton  v.  Hunt,  64  N.  C  R.  168. 

4.  In  actions  to  recover  damages  for  an  injury  resulting 
in  death,  brought  under  our  act,  the  correct  rule  touching  the 


120 


DAMAGES.— DEEDS— I. 


quantum  of  damages,  is,  the  reasonable  expectation  of  pecu- 
niary advantage,  from  the  continuance  of  the  life  ot  the 
deceased,  and  evidence  of  the  number  of  children  left  by  the 
deceased,  is  inadmissible  as  irrevalent  and  calculated  to  mis- 
lead the  jury ;  but  it  is  competent  to  prove  the  age,  strength, 
health,  skill,  industry,  habits  and  character  of  the  deceased,, 
with  a  view  to  arrive  at  his  pecuniary  worth  to  his  family. 
Kesler  v.  Smith,  <>6  K  0.  R.  154. 

5.  The  value  of  property  taken  under  process,  should  be 
assessed  at  the  time  of  trial,  as  the  taker  should  have  the 
option  of  returning  the  property  so  taken,  or  of  paying  its 
assessed  value.  If  the  price  of  the  property  taken  has  fallen 
in  the  time,  the  jury  should  include  the  difference  in  their 
assessment  of  damages  for  the  detention.  Boyleston  Insu- 
rance  Co.  v.  Davis,  70  N.  0.  R.  485. 

See  (Assumpsit,  3.)     (Mills,  3,  7.) 


DEEDS. 


I.     Of  the  execution  and  da'.e  of  a 

deed. 
II.     Construction  of  deeds. 


III.  Of  the  operation  of  a  deed,  and 

when  they  may  be  avoided. 

IV.  Deeds  in  trust. 


I.  OF  THE  EXECUTION  AND  DATE  OF  A  DEED. 


1.  The  bargainee  in  a  deed  having  refused  to  accept  it  af- 
ter it  had  been  acknowledged  by  the  bargainor  before  a  com- 
petent officer  and  a  certificate  ot  the  acknowledgment  appen- 
ded, a  delivery  will  not  be  presumed  from  a  subsequent  regis- 
tration, but  the  onus  will  be  upon  him  who  would  establish 
the  deed.     Gaither  v.  Gibson,  Phil.  L.  R.  530. 

2.  The  antedating  of  an  instrument,  in  a  case  where  it  did 
not  appear  to  have  been  done  with  a  fraudulent  purpose  and 
where  it  had  done  no  harm  to  others,  punished  only  by  re- 
fusing costs  to  the  party  involved  in  it.  Shaver  v.  Shoemaker, 
Phil.  Eq.  R.  327. 

3.  A  freehold  estate  in  lands  once  vested  by  fleec],  cannot 
be  divested  by  a  subsequent  re-delivery  of  such  deed  to  the 
vendor,  even  where  such  re-delivery  is  accompanied  by  an 
(here,  unsealed)  endorsement,  signed  by  the  vendee,  to  the 
effect,  "I  transfer  the  within  deed  to  W.  F.  T.  again.  Linker 
v.  Long,  (54  N.  0.  R.  290. 

4.  Such  endorsement  furnishes  evidence  of  an  agieement 
to  re-convey,  which  might  be  enforced  by  a  Court  of  equity y 


DEEDS— L— II.  121 

upon  a  proper  application  in  any  case  which  (like  the  present) 
was  pending  at  the  time  that  the  0.  0.  P  ,  was  adopted.  Ibid- 

5.  The  burden  ot  proving  the  due  delivery  of  a  deed,  which 
devolves  upon  him  who  claims  under  it,  is  not  avoided  by 
showing  that  he  has  it  in  possession.  Whitsett  v.  Mebane, 
64  N.  6  R.  345. 

6.  Therefore,  where  a  surety,  before  signing  a  bond,  stipu- 
lated that  it  should  be  placed  in  the  possession  of  a  third 
party,  until  such  surety  should  receive  ot  the  principal  a  cer- 
tain indemnity  against  the  risk  he  was  assuming,  and  then 
only  be  delivered  to  the  obligee :  held,  that  a  delivery  by 
such  third  person  to  the  obligee,  before  the  performance  of 
the  condition  stipulated  for,  was  void;  also,  that  the  posses- 
sion of  such  bond  by  the  obligee,  did  not  shift  from  him  the 
burden,  ordinarily  existing,  of  proving  that  the  bond  had 
been  duly  delivered  to  him.     Ibid. 

7.  If  a  grantee,  although  an  illiterate  man,  executes  a 
deed  without  demanding  that  it  be  read,  or  elects  to  waive  a 
demand  tor  the  leading,  the  deed  will  take  effect.  Commis- 
sioners v.  Kesler,  67  N.  0.  It.  44,3. 

See  (Deed — Ot  the  operation  of  a  deed,  &c,  5.) 

II.     CONSTRUCTION  OF  DEEDS. 

1.  Where  real  and  personal  property  was  given  to  A  in 
trust  foi  his  wife  and  their  children,  with  power  to  apply  the 
proceeds  to  the  maintenance,  ct*c,  of  the  cestui  que  trusts, 
and  as  the  children  should  come  to  maturity  to  advance  them, 
and  also  to  devise  the  property  to  his  wife  and  such  of  his 
children  as  he  should  deem  right:  held,  that  upon  the  death 
of  any  such  children  in  A's  life-time,  their  several  shares  in 
the  property  vested  in  their  real  and  personal  representative, 
subject  to  any  execution  thereafter  of  the  said  power.  That 
under  the  power  to  devise,  inasmuch  as  some  of  the  children 
survived  him,  he  could  not  devise  to  a  grand-child.  Carson 
v.  Carson,  Phil.  Eq.  K   57. 

2  A  limitation  by  deed  to  W.  J  S.,  and  his  heirs — "for 
and  during  the  period  of  his  natural  life;  at  his  death  said 
property  to  go  to  the  heirs  of  his  body,  to  them,  their,  heirs 
and  assigns  forever," — creates  a  fee  simple  in  W.  J.  S. ;  and 
a  limitation  over,  "in  default  of  heirs  of  his  body  living  at 
his  death,"  is  too  remote.     McBee,  ex  parte,  (13  KG  R.  332. 

3.  Where  the  maker  of  a  paper  writing  inter  vivos  died 
without  delivering  it,  any  gift  therein  contained  is  void;  and 
the  fact  that  the  donee  is  a  son  of  the  donor  will   not  auth- 


122  DEEDS— II. 

orize  a  Court  of  Equity  to  assist  him  as  a  meritorious  claim- 
ant, in  the  absence  of  any  declaration  of  intention  by  the 
donor  in  his  favor,  other  than  as  contained  in  the  writing, — 
especially  where  he  is  provided  tor  in  the  will  of  the  deceased, 
and  such  assistance  is  asked  against  other  persons  equally 
meritorious.     Ibid. 

4.  In  putting  a  construction  upon  a  deed  or  other  written 
instrument,  facts  existing  at  the  time  to  which  the  words 
used  point,  may  be  proved  as  a  key  to  the  meaning;  just  as 
the  condition  of  a  testator's  family  and  estate  at  the  date  of 
his  will  may  be  proved,  to  aid  in  arriving  at  his  meaning. 
JRiclmrds  v  Sohlegelmich,  63  N".  0.  R.  151). 

5.  Where  a  deed  was  made  by  a  father  to  his  son,  in 
pursuance  of  a  previous  agreement,  and  contained  the  follow- 
ing clause,  to-wit:  "for,  and  in  consideration  of  $200,  and 
the  faithful  maintenance  of  T.  L.  and  wife,  P.  L.,  hath  given 
and  granted  unto  the  said  T.  L.,  a  certain  tract  of  land,  to 
have  and  to  hold,  &c  :"  held,  that  this  stipulation  constitutes 
a  charge  upon  the  land,  in  the  hands  of  the  heir-at-law, 
though  not  upon  the  personal  estate  in  the  hands  of  the  ad- 
ministrator.    Laxton  v.  Tillg,  (Jo*  N.  0.  K.  527. 

6\  When  a  party  conveys  by  deed  certain  real  estate  in 
trust  to  secure  the  creditors  therein  named,  and  afterwards 
makes  another  deed  conveying  the  said  real  estate,  with  other 
property,  in  trust  to  secure  a  number  of  creditors  whose 
names  are  set  forth  in  a  schedule,  with  this  further  proviso  : 
"  Beiug  desirous  of  placing  all  the  creditors  of  the  said  party 
of  the  first  part  upon  a  basis  of  equality,  so  far  as  their  rights 
are  concerned,  and  in  case  it  should  turn  out  that  any  creditors 
of  said  party  hive  been  omitted  in  said  schedule,  it  is  hereby 
-expressly  declared  that  such  creditors,  so  omitted,  shall  be 
allowed  to  share  equally  in  the  benefits  of  this  trust  with 
those  expressly  named  ;"  held,  that  upon  a  fair  construction 
of  the  latter  deed,  creditors  named  in  the  first  are  entitled  to 
no  part  of  the  funds  raised  under  the  second  deed.  Doivd, 
Trustee,  v.  Coates  <fc  Springy,  67  N.  0.  11.  273. 

7.  An  intention  to  make  a  further  provision  for  the  for- 
mer class  of  creditors,  at  the  expense  of  the  latter  class,  is 
very  improbable,  and  by  the  rules  of  construction,  which  are 
merely  deductions  of  common  sense,  a  construction  to  give 
effect  to  an  intention  which  is  improbable  and  unreasonable 
must  be  excluded,  unless  such  intentions  is  expressed  in  plain 
and  direct  words.     Ibid. 

8  The  words  "in  case  it  shall  turn  out  that  any  creditor 
has  been  omitted  iu  said  schedule,  such  creditor  or  creditors 


DEEDS— II.  123 

so  omiteed  share  equally  with  those  expressly  named,"  are 
appropriate  to  express  an  intention  to  exclude  one  or  more 
creditors  whose  name  had  been  accidentally  omitted,  but 
inappropriate  to  include  a  large  number  whose  debts  had 
already  been  provided  for.     Ibid. 

9.  The  provision,  that  all  the  creditors  should  be  on  a 
basis  of  equality,  would  be  a  mockery,  if  the  creditors  of  the 
first  class  "were  to  come  in,  without  accounting  for  the 
amounts  received  under  the  first  deed.     Ibid. 

10.  A  clause  in  a  deed  "  as  long  as  the  system  of  common 
schools  shall  be  continued  at  that  place,  or  as  long  as  it  shall 
not  be  applied  to  any  other  purpose  except  for  schools,  of  any 
kind,"  is  not  expressed  in  apt  and  proper  terms  to  create  a 
condition,  or  qualification  of  the  estate  conveyed,  or  even  a 
covenant  to  run  with  the  laud,  ticliool  Commissioners  v. 
Kesler,  07  N.  C.  E.  443. 

11.  A  base  or  qualified  fee  has  never  been  in  use  or  in 
force  in  this  State,  or  recognized  by  its  laws ;  and  a  condition 
or  qualification  in  a  deed,  conveying  an  estate  to  a  school 
committee  "as  long  as  the  system  of  common  schools  shall 
be  continued,  &c  ,  is  contrary  to  public  policy,  repugnant, 
and  inconsistent  with  the  nature  ot  the  grant,  and  therefore 
void.     J  bid. 

12.  Where  three  persons  upon  receiving  a  deed  from  their 
father,  J.  T.,  made  with  him  the  following  covenant :  "That 
J.  T.  and  his  family  shall  have  their  home  upon  the  land,  he 
has  this  day  as  executor  of  J.  0.,  conveyed  to  them,  and  that 
he  and  his  family  shall  have  the  use  ot  all  the  personal  prop- 
erty this  day  conveyed  so  far  as  is  necessary  for  their  use  and 
convenience,  and  further,  that  they  shall  have  a  support  out 
of  what  shall  be  made  upon  said  land  during  the  life  of  J.  T'.: 
It  was  hell,  that  the  limitation  in  the  last  sentence,  "during 
the  life  of  J.  T."  applied  to  all  the  clauses  in  the  deed,  and 
that  after  death  of  A.  T  ,  his  said  sons  were  entitled  to  the 
possession  and  enjoyment  of  all  the  property  conveyed  by  the 
deed      Terrell  tt  al  v.  Terrell,  m  N.  0.  Ill  50. 

13.  When  a  defendant  admits  that  the  plaintiffs  are  the 
owmers  of  the  remainder  in  fee  of  the  land  sued  for,  but  con- 
tends that  he  is  tenant  for  life  of  the  said  land  under  a  certain 
deed  executed  by  the  plaintiff,  he  cannot  controvert  the  title 
of  the  plaintiffs  to  the  land,  but  is  confined  to  his  claim  under 
that  covenant,  and  the  validity  of  his  claim  to  a  life  estate 
will  depend  upon  a  proper  construction  of  it.     Ibid. 

14.  Wheie  the  premises  in  a  deed  of  bargain  and  sale 
emitted  the  word  heirs  in  the  limitation  of  the  estate  to  the 


124  DEEDS— II.— III. 

bargainee,  but  the  habendum  and  warranty  clauses  were  as  fol- 
lows :  To  have  and  to  hold  free  and  clear  from  all  just  claims, 
I,  the  said  J.  B  ,  dolh  warrant  and  defend  the  right  and  title 
of  the  said  tract  of  land,  to  have  and  to  hold  free  and  clear 
from  me  and  my  heirs,  and  the  claims  of  any  other  persons, 
unto  him,  the  said  G.  H.,  his  heirs  and  assigns :  It  tvas  held, 
that  the  clauses  were  not  a  mere  warranty  to  the  bargainee 
and  heirs,  but  were  in  effect,  in  addition  to  the  warranty,  a 
habendum  to  him  and  his  heirs,  thus  conveying  to  him  an 
estate  in  fee  simple.  Phillips  v.  Davis  et  al,  69  N.  C  R.  117. 
See  (Evidence — Parol  Evidence,  when  admissible,  4-5  ) 

III.     OF  THE  OPERATION  OF  A  DEED,  AND  WHEN  IT  MAY  BE  AVOIDED. 

1.  A  deed  of  bar-gain  and  sale  is  irot  void  because  of 
iuforraality,  if  its  terms  be  such  as  show  the  intention  of  the 
parties.     Royster  v.  Royster,  Phil.  L.  R.  226. 

2.  A  limitation  in  a  deed  of  bargain  and  sale,  to  one  for 
life  with  remainder  in  fee  to  another,  the  consideration  being 
expressed  to  have  been  paid  by  the  latter,  is  valid.     Hid. 

3.  The  widow  of  the  remainderman  in  such  case,  the 
tenant  for  life  surviving  him,  is  not  entitled  to  dower-.     IUd. 

4.  Where  oire  proposed  to  convey  a  tract  of  land  in  trust 
and  his  brother  undertook  to  have  the  deed  drawn,  and 
thereupon,  without  the  knowledge  of  the  vendor,  inserted 
thei-ein  a  conveyance  also  of  another  tract  in  trust  for  himself, 
and  upon  presenting  the  deed  for  execution,  in  reply  to  a 
question  by  the  vendor-,  said  that  it  was  "all  right,"  where- 
upon the  latter  executed  it  without  reading  it,  or  hearing  it 
read  :  held,  that  the  conveyance  of  the  second  tract  was  valid 
at  law.     Mc  Arthur  v.  Johnson,  Phil.  L.  R.  317. 

5.  Distinction  between  fraud  in  the  factum,  and  other 
fraud  attending  the  execution  of  deeds,  stated  and  applied. 
IUd, 

0.  A  deed  in  fee  executed  in  1850,  which  contained  a 
memorandum  that  it  was  executed  instead  of  a  lost  deed 
executed  iir  1854,  conveyed  all  the  estate  which  the  vendor 
had  in  the  land  at  the  time  of  its  execution,  and  not  that 
only  which  he  had  in  1854.     King  v  Little,  Phil.  L.  R.  484. 

7.  A  (\eed,  the  consideration  of  which  is  the  prospective 
support  of  the  bargainor,  is  valid  as  a  bargain  and  sale;  and 
if  the  vendor  be  proved  to  be  the  mother  of  the  vendees, 
also,  as  a  covenant  to  stand  seized.  Salms  v.  Martin,  63 
N.  0.  R,  608. 

8.  Semble,  that  under  the  provisions  of  ch.  37,  sec.  1,  of 


DEEDS— III.  125 

the  Rev.  Code,  a  conveyance  of  land  in  North  Carolina  does 
not  require  a  consideration  (except  so  far  as  required  by  the" 
policy  in   favor  of  creditors,  aDd  purchasers  for  value,)  but 
ordinarily  is  valid  if  executed  and  registered,  as  there  required, 
without  the  addition  of  any  of  the  former  ceremonies.     Ibid. 

9.  A  conveyance  in  regular  form,  executed  in  1859,  with 
a  memorandum  under  seal  annexed  stating  that  it  was  made 
in  substitution  for  a  previous  deed  between  the  same  parties 
for  the  same  land  executed  in  1854,  and  lost, — will,  notwith- 
standing such  memorandum,  pass  whatever  estate  the  bar- 
gainor may  have  in  such  land  in  1859.  Little  v.  King,  04 
K  0.  B.361. 

10.  Where  a  complaint  sought  for  the  cancellation  of  a 
deed  alleged  to  have  been  delivered  under  the  following  cir- 
cumstances: At  Fall  Term,  1803,  the  Judge  who  held  the 
Superior  Court  for  the  County  of  Burke,  in  which  the  parties 
resided,  made  a  violent  charge  to  the  grand  jury,  upon  the 
.subject  of r«ceivi)i g  Confederate  money  for  debts,  threatening 
such  as  refused  it,  with  imprisonment;  thereupon  the  defen- 
dant, who  was  a  judgment  debtor  (rendered  in  1858,)  of  the 
plaintiff's  testator,  upon  a  bond  payable  in  specie  as  the  con- 
sideration for  a  tract  of  land,  for  which  he  held  the  judgment 
creditors  bond  for  the  title — moved  bis  honor  to  be  allowed 
to  pay  off  the  judgment  in  Confederate  money,  and  was 
allowed  to  do  so,  and  to  have  satisfaction  entered,  and  the 
Judge  also  sent  word  to  the  creditor,  that,  if  he  did  not 
receive  the  Confederate  money  and  execute  a  deed,  he  would 
Lave  him  sent  to  Richmond,  Va. ;  and  the  latter,  under  fear, 
being  infirm,  &c  ,  received  the  money  and  delivered  the  deed: 
held,  that  the  plaintiff  was  entitled  to  the  relief  deman- 
ded.    Harshaw  v.  Dobson,  04  N.  C.  R.  384. 

11.  A  deed  for  land,  when  registered,  has  all  the  force 
and  effect  of  a  feoffment  at  common  law  with  livery  of  seizin 
and  a  declaration  of  uses  thereon.  Ivey  v.  Gronberry,  00 
X.  C.  R.  224. 

12.  By  the  policy  of  our  statutory  law,  a  bastard  stands 
in  such  a  relation  to  his  mother,  that  the  relationship  between 
them  is  a  sufficient  consideration  to  raise  a  use,  aliter  as  to 
the  father.     Ibid. 

13.  A  registered  deed  from  a  mother  to  her  bastard  child, 
is  valid  and  conveys  the  title,  either,  as  having  the  same  oper- 
ation as  a  feoffment  with  livery  accompanied  with  a  declara- 
tion of  the  use,  or,  as  a  covenant  to  stand  seized  to  uses. 
Ibid. 

14.  Since,  as  well  as  before,  the  statute  of  uses,  27  Hen., 


126  DEEDS— IIL— IV.— DESCENT. 

8,  no  ;  ctual  consideration  is  necessary  to  raise  a  use  in  con- 
veyan<  es  operating  by  transmutation  of  possession  as  tine, 
feoffment,  &c,  amv  a  deed  to  lead  or  declare  the  uses,  was 
only  necessary  to  prevent  a  resulting  use,  arising  to  the  con- 
usor, feoffor,  &c.     Ibid. 

15.  Here,  as  registration  supplies  the  place  of  feoffment 
with  livery,  the  deed  has  the  effect  to  lead  tne  uses,  and  thus 
rebuts  the  resulting  trust.     Ibid. 

1G.  Whether  the  question  ot  a  lack  of  consideration  is  open 
to  any  but  creditors  and  purchasers  for  value,  quere — per 
Meade,  J.  it  is  not.     Ibid. 

IV.     DEEDS  IN  TRUST. 

See  (Trusts  and  Trustees  passim.) 


DESCENT. 

1.  Where,  at  the  death  of  the  ancestor  those  capable  of 
inheriting  were,  two  nieces,  children  of  a  brother  who  had 
died  an  alien ;  four  children  of  another  niece,  also  a  child  of 
that  brother,  who  had  died  after  being  naturalized ;  and  a 
fourth  niece,  a  child  of  a  sister  of  the  deceased  who  had  died 
an  alien :  held,  that  the  real  estate  was  to  be  divided  into 
four  parts,  ot  which  the  three  nieces  took  one  each,  and  the 
fourth  was  to  be  divided  among  the  four  children  of  the  niece 
who  had  died  after  naturalization.  Harman  v.  Ferrall,  64 
N.  C.  R.  474. 

2.  Where  a  will  is  contested,  land  devised  therein  vests 
ad  interim  in  the  heirs  of  the  deceased.  Floyd  v.  Herrinq, 
64  K  0.  K.  409. 

3.  It  is  well  settled  that  in  descended  estates,  where  the 
person  last  seized  dies  without  leaving  issue,  or  brother  or 
sister  of  the  blood  of  the  first  purchaser,  but  a  half-sister  not 
of  such  blood,  and  remote  collaterals  of  such  blood,  the  in- 
heiitance  shall  descend  upon  such  remote  collaterals,  rather 
than  upon  such  halt-sister.  Docier  v.  Grandy,  66  N.  0.  R. 
484. 

4.  When  lands  descend  to  collateral  relations,  under  the 
Act  of  1856,  (Rev.  Code,  ch.  38,  sec.  1,  rule  4,)  the  collateral 
relations  of  equal  degree  take  per  stirpes  and  not  per  capia* 
Cromartie,  v.  Kemp,  66  N.  C   R.  382. 

5.  To  entitle  a  husband  to  an   estate  as  tenant  by  the 


DESCENT.— DEYISE— I. 


127 


curtesy,  before  the  adoption  of  the  Rev.  Code,  (1st  January, 
1856,)  a  seizen  in  deed  was  necessary;  and  under  the  rates 
prescribed  in  chap.  38  of  the  Rev.  Stat ,  (1st  January,  1B3K,) 
a  seizen  in  deed  was  also  necessary,  in  case  of  the  parent's 
claiming  a  life  estate  upon  the  death  oi  his  child.  Now  under 
the  provisions  of  the  Rev.  Code,  chap.  38,  rules  1  and  13, 
neither  actual  nor  legal  seizen  is  necessary  to  make  the  stock 
in  the  devolution  of  estates.  Sears  v.  McBride,  70  N.  C.  R. 
152. 

G.  A.  died  seized  and  possessed  of  real  and  personal  estate, 
leaving  him  surviving  three  grand-children  by  a  son  and  five 
by  a  daughter — the  son  and  daughter  having  died  before  A: 
held,  that  under  rule  3,  Bat.  Rev  ,  chap.  36,  the  grand-chil- 
dren represent  their  ancestors,  and  take  the  estate  per  stirpes 
and  not  per  capita.  And  as  the  parties  take  by  representa- 
tion, it  follows  that  any  advancements  made  to  the  ancestors 
must  be  accounted  for.     Crump  v.  Faucett,  70  N.  C.  R.  345. 

See  (Naturalization.) 


DEVISE 

Construct/!  n  or  to  what  passes 

II. 

and  who  takes. 

III. 

Power  to  sell  real  estate. 
For  charitable  uses. 


I.     CONTSTKU(  TION  OR  TO  WHAT  PASSES  AND  WHO  TAKES. 

1.  The  contingency  involved  in  a  limitation  over  upon  the 
death  of  one  "  leaving  no  heirs  of  his  body,"  cannot  be  deter- 
mined until  the  death  has  occurred;  therefore,  where  one 
devised  land  to  a  grandson,  providing  that  if  he  died  without 
an  heir  of  his  body  it  should  go  over  to  certain  other  grand- 
sous  and  the  survivors  of  them,  and  in  case  the  last  survivor 
of  these  died  without  heirs  of  the  body,  then  over  :  held,  that 
the  first  taker  and  the  grandsons  together  could  not  convey 
an  iudefeasible  title  in  fee.  Jsler  v.  Whitfield,  Phil.  L.  R.  493. 

2.  A  devisee  of  land  to  the  testator's  son  and  daughter 
for  life,  "and  then  to  go  to  my  [testator's]  heirs  at  law,  and 
their  heirs  and  assigns  forever  excluding  all  those  on  the  part 
of  my  [testator's]  sister,  Brooks":  held,  to  pass  a  contingent 
remainder  to  the  persons  described  as  "heirs  at  law,"  as  they 
could  be  ascertained  onlv  after  the  termination  of  the  parti- 
cular estate.     Hall  v.  Want,  Phil.  L.  R.  502. 

3.  Held,  also,  that  a  partition  in  fee  under  order  of  court, 
made  between  the  son  and  daughter,  (at  that  time  the  testa- 


128  DEVISE— I. 

tor's  only  heirs,)  was  no  ground  for  an  estoppel  to  the  child- 
ren of  the  daughter,  who  upon  the  death  of  the  sou  without 
issue,  their  mother  having  died  before,  claimed  the  land  un- 
der the  devise.     Ibid. 

4.  Also,  that  a  bargain  and  sale  in  fee  by  the  son,  of  the 
part  allotted  to  him  under  the  partition,  was  without  effect 
upon  the  remainder.     Ibid. 

5.  A  clause  annexed  to  a  devise  in  fee,  providing  that  in 
case  either  of  the  devisees  "shall  sell  or  encumber  his  laud 
with  any  sort  of  lien,  by  way  of  mortgage  or  otherwise,"  be- 
fore attaining  the  age  of  thirty-five  years,  theu  the  devise 
should  be  void,  is  invalid.     Ttviity  v.  Camp,  Phil.  Eq.  R.  61. 

0.  Where  land  was  devised  to  the  widow  of  the  testator 
for  her  lite,  and  afterwards  to  a  son  in  fee  :  "  provided  he  pays 
within  two  years  from  her  death  $150.00  to  the  heirs  of  my 
son  William":  held,  that  the  land  was  charged  with  this  sum, 
and  therefore  a  purchaser  of  it  for  value,  from  the  widow  and 
remainderman,  with  notice  of  the  sum  charged  as  above,  was 
liable  for  it  to  the  legatees,  incase  they  could  not  get  it  from 
such  remainderman.    Patterson  v.  Patterson,  63  JS".  C.  li.  322. 

7.  Ileal  estate,  ordered  by  a  testator  to  be  sold  and  the 
proceeds  divided  amongst  certain  children,  is  considered  as 
personalty  from  the  time  of  his  death.  McBee  ex  parte,  63 
N".  0.  11.  332. 

8.  A  testator  devised  his  skillet-handle  farm  to  A  B,  in 
discharge  of  a  debt  due  to  her,  and  provided  further,  in 
another  part  of  the  will,  that  a  certain  house  should,  at  the 
expense  of  his  estate,  be  removed  from  another  tract  to  the 
farm  given  above  ;  the  devise  having  been  accepted,  held  that 
although  as  regards  creditors,  the  house  was  to  be  treated  as 
personalty,  yet  as  against  the  other  devisees  it  remained 
realty,  and  therefore  that  A  B,  being  a  purchaser  for  value, 
was  entitled  to  have  its  vilue,  and  a  sim  sufficient  to  pay  for 
its  removal,  as  above,  made  up  to  her  by  other  devisees. 
Humphries  and  wife  v.  Shaw,  63  N.  0.  R.  341. 

9.  A  testator  desired  his  property,  real  and  personal,  after 
the  death  of  his  widow,  to  be  divided  among  his  heirs ;  ex- 
pect that  A  should  have  $50,  and  B,  C,  D  and  E  $10  each, 
above  their  distributive  shares:  held,  that  these  sums  were 
to  be  made  good  out  of  the  real  estate,  if  the  personalty 
proved  insufficient      Crocker,  ex  parte,  63  N.  (J.  E.  652. 

10.  A  clause  iu  a  will,  giving  "  unto  my  wile  the  use  aud 
benefit  of  all  my  estate,  real  and  personal,  after  payiug  my 
just  debts,  during  her  natural  life.  1  also  leave  in  the  power 
of  my  wife  to  lay  out  all  the  surplus  funds, ^consisting  of 


DEVISE— I.  129 

notes  and  cash,  in  land,  for  her  especial  use  and  benefit  dur- 
ing her  natural  life,  and,  after  her  death,  to  be  given  to  my 
uiece;  also,  a  county  claim  of  the  following  amount,  $2,573  21, 
to  be  appropriated  as  above,"  gives  a  remainder  in  the  sur- 
plus funds  to  M.'J.,  whether  they  were  invested  in  lands  or 
not      Charles  v.  Kennedy,  04  N.  C.  R.  442. 

11.  Especially  is  this  so  iu  a  will  in  which  it  appears  that 
M.  J.  was  the  principal  object  of  the  testator's  bounty;  and 
that  the  testator  did  not  intend  to  die  intestate  as  to  any 
portion  of  his  estate.     Ibid. 

12.  A  testator  bequeathed  to  his  wife  certain  slaves, 
horses,  farming  tools,  &c,  and  devised  to  her  one-half  of  his 
land,  and  in  the  latter  part  of  said  clause,  he  also  bequeathed 
her  "  all  my  grain  on  hand  for  the  support  of  the  family ;  and 
should  my  wife  wish  to  sell,  or  dispose  of  any  of  the  above 
property,  she  can  do  so,  with  the  advice  and  consent  of  my 
executor:"  held,  that  she  took  an  absolute  estate  in  the 
realty  devised,  and  after  the  assent  of  the  executor,  she  ac- 
quired an  absolute  estate  in  the  personal  property  embraced 
in  said  clause.     Carpenter  v.  Ketter,  65  N.  C.  R.  475. 

13.  Where  a  testator  devised, — to  A,  his  "plantation 
between  Burnt  Coat  and  Beaver-dam  Swamp,"  to  B,  "  all 
that  portion  of  Ms  Enfield  tract  of  laud  lying  north  of  the 
old  road  from  Old  Enfield  to  Halifax  town," — to  others,  "  all 
the  balance  of  his  property,  after  paying  debts ;"  and  after- 
wards cancelled  the  devise  to  A  :  held,  that  although  the 
description  of  the  laud  given  to  B,  would,  per  se,  include  that 
given  to  A,  yet,  inasmuch  as  when  first  written,  the  testator 
did  not  use  it  in  this  large  sense,  such  sense  could  not  be 
imposed  upon  it  by  the  mere  cancellation  of  the  devise  to  A: 
held,  also,  that  the  legal  effect  of  such  cancellation  was  to 
throw  the  land  given  to  A  into  the  residue.  Branch  v.  Hun- 
ter, Phil.  L.  R.  1. 

14.  Whether,  under  the  words  "my  plantation,"  used  in 
a  will,  all  lands  contiguous  to  the  home  place  of  the  testator, 
will  pass,  qnere  t     McLenan  v.  Chisholm,  06  N".  C.  R.  100. 

15.  In  construing  a  will  where  it  is  not  punctuated,  and 
is  very  ungrammatical,  it  ought  to  be  so  read  as  to  make  it 
consistent  and  sensible.  Therefore,  where  a  clause  of  a  will 
is  in  these  words:  "  Also  all  my  live  stock  to  be  divided 
between  my  wife,  Amy  Blandina  Maria  and  Michael ;  and  all 
my  land  and  plantation,  with  all  the  buildiu^s,  I  give  and 
bequeath  unto  the  above  named  Michael  Whitener ;  all  my 
vessels  and  stands  and  my  wind-mill  or  fan,  all  dues  by  note 
or  book  account,  I  also  give  to  my  son  Michael  Whitener :" 


130  DEVISE— I. 

it  was  held,  that  by  a  proper  construction  of  the  clause  the 
land  was  devised  to  Michael  Whiteuer.  Hoyle  v.  Whitener, 
07  N.  0.  R.  252. 

10.  A  testator,  after  giving  his  land  to  his  wife  for  life, 
devised  as  follows :  "  At  my  wife's  death,  it  is  my  will  that 
nay  land  be  equally  divided  between  my  sons,  J,  E  and  W, 
and  the  negroes  given  her  (the  wife,)  as  above,  are  to  be 
disposed  of  as  follows  :  that  is,  each  of  them  upon  their  arri- 
val at  lawful  age,  is  to  have  an  equal  part  of  the  said  negroes, 
except  my  sons  T  and  F,  and  my  daughters  P,  B  and  0," 
&c:  held,  that  the  three  sons  named  were  alone  entitled  to 
the  laud.     IJope  &  wife  v.  Whitehead  et  al,  68  N.  C  R.  191. 

17.  A,  in  his  will,  gave  to  his  wife,  "  all  my  estate,  real,, 
personal  and  mixed,  to  be  managed  by  her,  andthat  she  may 
be  enabled  the  better  to  control  and  manage  our  children,, 
to  be  disposed  of  by  her  to  them,  in  that  manner  she  may 
think  best  for  their  good  and  her  own  happiness:"  held,  to 
be  a  gift  to  the  wife  in  trust,  not  for  herself  nor  the  children 
alone,  but  for  both,  to  be  managed  at  her  discretion  for  the 
benefit  of  herself  and  children.  Young  v.  Young,  68  N.  C.  R. 
309.  ' 

18.  Testator  devised  a  certain  tract  of  land,  describing  it, 
to  his  son  D  and  his  heirs  forever,  annexing  this  condition:: 
"Now  in  case  the  said  D  and  the  balance  of  my  heirs  cannot 
agree  in  the  price  of  the  above  described  or  bounded  lands, 
the  parties  can  choose  a  mutual  board  of  valuation,  and  if 
the  said  D  is  not  williug  to  abide  by  the  valuation  thus  ob- 
tained, then  in  that  case  I  will  that  the  above  bounden  lands 
shall  be  sold,  and  the  proceeds  equally  divided  among  all  my 
heirs,  excepting,  &c.:  held,  that  D  should  have  the  land,  but 
that  he  should  pay  to  the  other  heirs  their  proper  shares  of 
its  reasonable  value;  held  further,  that  should  D  decline  to- 
take  the  land  the  same  will  be  sold  and  the  proceeds  divided 
as  prescribed  in  the  will.     Tattle  v.  Puitt,  G8  N.  C.  R.  543. 

1 9.  11<  Id  further,  that  the  trust  is  coupled  with  the  power 
to  dispose  of  the  property  among  the  children  at  her  own 
discretion  as  to  time,  quantity  and  person;  and  that  no  one 
of  them  is  entitled,  as  of  light,  to  have  a  share  of  the  prop- 
erty alloted  to  him  upou  his  arrival  at  age.     Ibid. 

20.  Where  a  testator  directs  his  property,  land  or  per- 
sonal property,  to  be  equally  divided  among  his  heirs,  the- 
division  must  be  per  capita  and  not  per  stirpes.     1  bid. 

21.  Where  a  testator  gave  to  his  wife  all  his  lands  and 
many  articles  of  personal  property,  and  added  "all  of  which 
property  to  be  Ler's  during  widowhood  ;  in   the  event  of  her 


DEVISE— I.  131 

marriage,  the  one-third  of  the  above  property  to  be  her's  for- 
ever, and  the  balance  to  be  divided  among  my  children,  and 
subject  to  the  same  restrictions  as  hereafter  mentoined," 
which  restrictions  were  that  other  property  given  to  his  chil- 
dren should  be  be  their's  for  life  with  liniitaions  to  their  chil- 
dren :  it  teas  held,  that  as  the  wife  never  married  again  the 
interest  which  she  had  taken  in  the  lauds  was  for  life  only,  and 
upon  her  death  they  descended  to  the  heirs-at-law  of  her 
husband.     Pettis  v.  Smith,  69  N.  C.  R.  543. 

22.  Testatrix,  after  providing  for  the  payment  of  her 
debts  and  funeral  expenses,  says  :  "  the  balance  of  my  prop- 
erty of  all  kind,  I  give  to  my  grandson  J  T,  to  him  and  to  his 
heirs,  and  it  he  should  die  and  leave  no  lawful  heirs  of  his^ 
body,  then  in  that  case  I  give,"  &c:  held,  that  the  estate  of 
J  T  was  an  absolute  one  at  the  death  of  the  testatrix,  and 
went  upon  his  death  to  his  representatives.  Davis  v.  Parker, 
69  N.  0.  R.  27 1. 

23.  When  a  testatrix  devised  a  tract  of  land  to  her  sou, 
to  him  and  his  heirs  forever,  and  added  the  following  clause : 
"but  should  my  son  die  without  lawful  issue,  then  and  in 
that  case,  it  is  my  request,  (inasmuch  as  it  was  his  fath- 
er's wish)  that  the  above  giveu  legacy  be  by  hun  conveyed  by 
will  in  writing,  to  his  brother,  J.  F.  N.,  or  to  any  one  or  more 
of  my  grandchildren  :  it  was  held,  that  he  took  and  absolute 
estate  in  fee  simple  in  the  land,  and  that  upon  his  death 
without  issue  and  intestate,  it  might  be  sold  by  his  adminis- 
trator for  the  payment  of  his  debts.  Batch elor  v.  Macon,  69 
N".  C.  R.  545. 

24.  A  testator  directed,  after  giving  some  pecuniary  lega- 
cies to  certain  grand-children  which  was  a  charge  upon  the- 
whole  of  his  estate,  that  his  "real  and  personal  property  re- 
main as  a  common  stock  for  the  family  that  now  make  their 
home  here,  subject,  nevertheless,  to  any  distribution  which 
my  executors  hereinafter  named  may  think  proper  to  make  :''' 
held,  that  all  the  living  children' of  the  testator,  and  the  rep- 
resentatives of  the  deceased  children,  are  tenants  in  common 
of  all  the  real  and  personal  estate,  with  partition  postponed 
until  circumstances  should  make  it  necessary.  The  separa- 
tion of  the  family,  and  the  death  of  some,  and  the  sale  of  the 
interest  of  one,  thereby  letting  into  the  family  a  new  and  dis- 
turbing element,  is  such  a  change  of  circumstances  as  makes 
a  partition  proper.     Dickson  v.  Dickson,  70  N.  C.  R.  487. 


132  DEVISE— II.— III.— DIVORCE  AND  ALIMONY. 

II.     POWER  TO  SELL  REAL  ESTATE. 

A  direction  in  a  will  to  divide  an  estate  real  and  personal, 
is  not  a  direction  to  sell  the  real  estate  tor  a  division  :  hence, 
the  words,  "  The  rest  and  residue  of  my  estate,  whether  real 
or  personal,  I  give  to  be  divided  between  the  legatees  herein 
mentioned,  in  proportion,"  &c,  confer  no  power  on  the  ad- 
ministrator cum  testamento  annexo  to  sell  such  real  estate  for 
the  purpose  of  a  division.  McDowell  v.  White,  08  N.  0.  R.  05. 

III.     FOR  CHARITABLE  USES. 

1.  A  devise  and  legacy  to  "  Bishop  Thomas  Atkinson, 
Bishop  of  North  Carolina  and  his  heirs,"  "  in  trust  for  the 
poor  orphans  of  the  State  of  North  Carolina,  and  the  said 
Bishop  and  his  successors  to  have  the  right  to  select  such 
orphans,"  <£*c.,  and  he  shall  direct  and  control  said  trust  in 
the  best  way  for  thes  ipport  of  said  orphans,  and  the  forma- 
tion of  their  morals  and  education,"  creates  a  trust  for  a  spe- 
cified object,  in  behalf  of  a  definite  class,  and  is  valid,  at  all 
eveuts  during  the  life  of  Thomas  Atkinson.  Miller  v.  At- 
kinson, 03  N.  C.  R.  537. 

2.  The  difficulties,  suggested  as  likely  to  occur  on  the 
death  of  Thomas  Atkinson,  in  reference  to  the  exercise  of  a 
choice  of  beneficiaries  among  the  "poor,"  &c,  may  be  obvia- 
ted by  intervening  legislation;  the  distinction  being  that 
where  the  trust  is  void  because  its  objects  are  too  indefinite, 
there  can  be  no  aid  by  legislation  ;  but  where  the  objects  are 
sufficiently  definite,  and  the  trust  is  valid,  the  Legislature 
may  interfere  to  remove  any  difficulty  in  regard  to  limiting 
the  number,  and  selecting  the  "orphans" — that  being  mere- 
ly secondary,  and  rendered  necessary  by  the  proportions  of 
the  fund  given.     Ibid. 


DIVORCE    AND    ALIMONY. 

1.  A  petition  for  divorce  because  of  adultery  by  the  de- 
fendant, need  not  allege  that  the  petitioner  has  not  been 
guilty  of  adultery.     Edivards  v.  Edwards,  Phil.  L.  R.  534. 

2.  An  order  for  alimony  pendente  lite  creates  a  debt  by 
record,  and  may  be  enforced  by  either  a  rule  and  consequent 
attachment,  or  by  a  fi  fa.     Wood  v.  Wood,  Phil  L.  R.  538. 

3.  Such  order  is  not  necessarily  affected  by  the  failure  of 
the  petitioner  to  obtain  the  relief  prayed  for  in  the  petition. 
Ibid. 


DIVORCE  AND  ALIMONY.  133 

4.  Upon  appeals  from  interlocutory  orders  granting  ali- 
mony pendente  lite,  the  Supreme  Court  founds  its  decree  on 
a  re-examination  of  the  petition  only.  Lynch  v.  Lynch, 
Phil.  Eq.  R.  46. 

5.  Where  such  petition  alleges  adultery,  it  is  a  sufficient 
foundation  for  the  order  appealed  from.     1  bid. 

6.  Whether  alimony  pendente  lite  shall  be  allowed  at  all, 
is  a  matter  of  law  Hon-  much  shall  he  allowed  is  a  matter 
of  discretion.     Schonwald  v.  Schonwald,  Phil  Eq.  R  215. 

7-  An  appeal  lies  from  an  order  refusing  such  alimony, 
under  the  lie  v.  Code,  ch.  39,  sec.  \o.     Ibid 

8  The  Superior  Courts  may  allow  appeals  in  such  cases 
without  security,  under  the  Rev.  Code,  ch  4,  sec.  23.     Ibid. 

9.  In  North  Carolina  it  is  not  necessary,  as  in  England, 
to  decide  the  question  of  marriage  or  no  marriage,  before 
passing  upon  the  right  to  alimony  pendente  lite.     Ibid. 

10.  In  deciding  upon  such  right,  the  court  is  confined  to 
a  consideration  of  the  petition  in  the  cause-     II  id. 

11.  A  delay  of  seven  years  in  filiDg  a  petition  is  suffiei- 
ently  accounted  for  by  trie  allegations,  that  at  the  happening 
of  the  matters  relied  upon  for  a  divorce  the  petitioner  was  a 
non-resident  of  the  State,  and  that  she  is  now  a  pauper. 
Ibid. 

12.  Where  the  defendant  in  a  petition  for  divorce  and 
alimony,  not  having  been  served  with  process,  was  present  in 
court  at  the  term  when  the  petition  was  tiled,  and  made 
objection  personally  to  any  order  granting  alimony  :  it  was 
held,  that  such  presence  and  action  did  not  give  to  the  cause 
the  character  of  a  lis  pendens;  and,  therefore,  that  at  such 
stage  no  order  for  alimony  could  be  made.  Simmons  v. 
Simmons,  Phil  Eq.  R.  03. 

13  Upon  an  application  for  alimony  pendente  lite,  it  is 
unnecessary  to  decide,  whether  the  petition  warrants  a  divorce 
a  vinculo,  or  only  a  divorce  a  mensa  et  thoro.  Little  v.  Little, 
03  N.  C   R.  22.  ' 

14.  Where  a  petition  for  divorce  by  the  wife  showed  for- 
bearance (and  connivance)  by  her  in  regard  to  adulteries  com- 
mitted by  the  husband  while  she  remained  in  his  house,  and 
then  charged  that  afterwards  he  drove  her  from  his  house  by 
threats  of  violence,  swearing  he  would  kill  her  if  she  did  not 
leave:  luld,  to  set  forth  ground  sufficient  for  a  divorcer 
mensa  et  thoro  at  least.     Ibid. 

15.  The  provision  for  a  prosecution  bond  in  divorce  cases, 
(Rev.  Code,  ch.  .">!),  s.  5,)  applies  only  wheie  the  wife,  by  her 
next  friend,  is  plaintiff.     State  v.  Lyth,  04  N.  C.  R.  255. 


134    DIVORCE,  &c— DBAININB  WET  LANDS. 

16.  Where  the  wife  is  defendant,  her  costs  are  to  be  paid 
in  advance  (unless  indulged  by  the  officers,)  by  the  husband, 
as  his  own  are ;  and  this  will  be  enforced  by  order  of  Court. 
Ibid. 

17.  Our  statute,  Rev.  Code,  ch  30,  s.  3,  allows  one-third 
of  the  husband's  estate  to  be  assigned  to  the  wile  when  she 
obtains  a  divorce.     Davis  v.  Davis,  OS  N".  0.  R.  180. 

18.  After  a  decree  dissolving  the  nuptial  tie  between  a 
husband  and  wife,  it  is  no  good  ground  for  exception  by  the 
husband,  the  defendant,  to  the  report  of  the  commissioners 
appointed  to  allot  one-third  in  value  of  his  estate  to  his  wife, 
that  the  commissioners  did  not  take  into  their  consideration 
his  interest  claimed  in  certain  land  as  tenant  by  the  curtesy, 
supposing,  as  tiiey  stated  in  their  report,  that  the  same  be- 
longed to  the  wife  absolutely.     Ibid. 

19.  In  a  suit  for  divorce,  a  vinculo  matrimonii,  the  plain- 
tiff, the  husband,  is  a  competent  witness  to  prove  the  impo- 
tence of  the  wife.     Barringer  v.  Barringer,  00  N.  C.  R.  179. 

'20.  Prior  to  the  1st  July,  187-5,  suits  for  divorce  were 
properly  instituted  before  the  Superior  Court  clerk,  but  since 
that  date,  by  virtue  of  the  act  of  1871-72,  chapter  193,  the 
Superior  Court  in  term  time  alone  has  jurisdiction.     Ibid. 

21.  In  a  petition  for  divorce,  and  for  alimony  pendente  lite, 
it  is  error  in  the  Court  below  to  decide,  at  the  return  term 
upon  matter  alleged  as  a  bar  to  the  petitioner's  right  to  a  de- 
cree. And  upon  the  petitioner's  making  out  a  prima  facie 
case,  she  is  entitled  under  the  Act  of  Assembly  to  alimony 
pendente  lite.     Imparls  v.  Sparks,  69  JSr.  C.  R.  31!). 

22.  Defendant  in  answer  to  a  petition  for  divorce,  relies 
upon  a  record  of  a  former  suit  between  the  petitioner  and 
himself,  his  answer  in  which  suit  alleged  adultery  on  the  part 
of  the  petitioner,  and  in  which  the  jury  found  that  the  peti- 
tioner had  been  guilty  of  adultery  with  J.  M.,  or  with  some 
one  else :"  held,  that  such  allegation  was  so  indefinite  and  so 
vague  as  to  be  void  and  of  no  legal  effect.     Ibid. 


DRAINING    WET    LANDS. 

1.  A  report  of  commissioners  under  c.  40  of  the  Revised 
Code,  (Draining  Lands,)  which  fails  to  assess  and  apportion 
that  part  of  the  labor  which,  by  s.  10,  is  to  be  contributed  by 
the  defendants,  is  fatally  defective.  Brooks  v.  Tucker,  Phil. 
L.  R '  300. 


DRAINING  WET  LANDS.— EJECTMENT— I.  135 

2.  Covenants  creating  easements  run  with  the  land,  even 
as  against  assignees  in  iee  where  the  intent  to  create  them 
is  clear,  the  easements  themselves  apparent,  and  the  cove- 
nants consistent  with  public  policy,  and  so  qualifying,or  regu- 
lating the  mode  ot  enjuiuiug  the  easements,  as  that,  if  disre- 
garded, the  latter  will  be  substantially  different  from  what  is 
intended.     IS  or  fleet  v.  Cromwell,  04  N.  0.  E.  1. 

3.  Therefore,  a  covenant  to  repair  a  canal  dug  for  the 
purpose  of  draining  the  lands  of  the  parties  to  the  covenant, 
runs  with  such  lands,  and  binds  a  subsequent  person  in  fee. 

4.  A  party  thus  bound,  is  entitled  to  notice  of  a  call  to 
-contribute,  after  the  repairs  have  been  done;  and  the  want  of 
such  notice,  even  where,  previously  to  the  making  of  the  repairs, 
he  had  disclaimed  liability  therefore,  is  fatal  to  an  action 
against  him.     Ibid 

5.  Covenants  are  the  proper  mode  of  creating  such  servi- 
tudes as  consist  in  acts  to  be  done  by  the  owner  of  the  ser- 
vient land.     Ibid. 

0.  When  upou  the  petition  of  one  or  more  parties,  under 
-the  act  ol  1785,  (Eev.  Stat  chap.  40,)  leave  was  granted  by 
the  county  court  to  cut  a  canal  across  the  land  of  another  for 
the  purpose  of  drainage,  the  petitioners  and  their  assignees, 
upon  the  report  of  the  jury  provided  for  in  said  act  being 
confirmed,  acquire  not  merely  an  easement  but  title  in  fee  to 
the  land  condemned.  Norfleet  v.  Cromwell,  70  N.  C.  E. 
034. 

7.  The  right  of  the  State  to  condemn  land  for  drains  rests 
on  the  same  foundation  as  its  right  in  case  of  public  roads, 
mills,  railroads,  school  houses,  &c.  The  acts  granting  such 
powers  are  not  unconstitutional.     Ibid.  / 

See  (Eoads,  7,  8.)  / 


EJECTMENT. 


I.    Of  the  title  i  ecessary  to  support 
the  action. 
•II.     Actions  for  real  estate  under  the 
C.  C.  P. 


III.  Defendant's  bond. 

IV.  Writ  of  possession. 

V.     Trespass  for  mesne  profits. 


I.     OF  THE  TITLE  XECESSAEY  TO  SUPPORT  THE  ACTIOX. 


1.     It  is  well   settled  in  this  State  that  a  vendee  of  land 
^ko  enters  upon  it  under  a  contract  of  purchase,  is  a  mere 


136  EJECTMENT— I. 

occupant  at  the  will  of  the  vendor,  and  that  the  latter  may 
at  any  time  put  an  eud  to  such  occupany  by  demanding 
possession  under  a  reasonable  notice  to  quit :  and  that  he 
may  then  recover  in  ejectment.  Twenty-live  days'  notice  to 
quit  in  such  case  is  reasonable.  Bntner  v.  Chaffin,  Phil.  L. 
Ji.  497. 

2.  The  state  of  the  accounts  between  the  parties  in  regard 
to  the  purchase  money  does  not  affect  the  vendor's  right  to 
recover  possession  at  law,  although  it  might  affect  his  choice 
of  such  a  remedy  rather  than  that  of  a  bill  for  specific  per- 
formance in  equity.     Ibid. 

3.  An  action  of  ejectment  cannot  be  maintained  upon  a 
demise  laid  on  a  day  before  the  right  of  entry  began;  there- 
fore, not  by  a  vendor  against  his  vendee  (who  lias  failed  to 
comply  with  the  terms  of  the  contract,)  upon  a  demise  laid 
upou  a  dav  before  the  demand  of  possession.  Guess  v.  Mc- 
Cauley,  Phil.  L.  R.  514 

4.  It  seems  that  one  day's  notice  to  leave  is  not  sufficient. 
1  bid. 

5.  A  mere  occupier  of  land  has  no  estate  which  upon 
quitting  possession  he  can  transfer  to  another;  and  one  who 
goes  into  possession  under  such  circumstances  (without  per- 
mission of  or  recognition  by  the  owner)  is  liable  to  be  treated 
by  him  as  a  trespasser,  and  to  be  ejected  without  a  previous 
notice  to  quit      Young  v.  Perry,  Phil.  L.  R.  549. 

0.  The  rule  that,  in  controversies  between  titles  of  differ- 
ent dates  which  lap,  actual  possession  of  the  lappagew  required 
to  perfect  the  color  of  title  of  the  junior  claimant,  applies  to 
controversies  between  the  State  and  citizens  who  claim  under 
mesne  conveyances  which  extend  the  boundaries  of  the 
original  grant.     lleddriclc  v.  Gobble,  Phil.  L.  R   348. 

7.  If  the  person  who  claims  under  the  elder  title  have  no 
actual  possession  of  a  lappage,  such  possession,  although  for 
a  part  only,  by  him  who  has  the  junior  title,  continued  for 
seven  vears,  will  confer  a  valid  title  for  the  whole.  Kerr  v. 
Elliott,  Phil.  L.  R.  001. 

8.  In  order  to  revest  an  estate  which  has  been  divested 
by  adverse  possession  under  color  of  title,  there  must  be  an 
open  entry  under  claim  of  right,  so  as  to  give  notoriety  to 
the  matter.     Ransom  v.  Lewis,  63  N.  0.  R.  43. 

9.  Where  a  deed  of  trust  is  made  to  secure  certain  speci- 
fied debts,  one  of  which  is  tainted  with  usury,  and  a  purch- 
aser' buys  at  the  trustee's  sale,  for  valuable  consideration, 
and  without  notice  of  the  illegality  of  the  consideration  of  the- 


EJECTMENT— I.  137 

said  debt :  held,  that  bis  title  is  not  affected  thereby.     McNeil 
v.  Riddle,  00  N.  0.  R.  290. 

10  If  a  deed  contains  a  declaration  of  trust  in  favor  of 
several  creditors,  and  one  of  the  debts  secured  is  feigned  or 
usurious,  aud  there  be  no  combination  between  the  creditors, 
to  whom  the  true  debts  are  due,  and  the  grantor  or  person 
for  whose  benefit  the  feigned  debt  is  inserted,  there  can  be 
no  reason  why  the  declaration  of  trust  in  favor  of  the  true 
debts  may  not  stand,  and  the  feigned  debt  be  treated  as  a 
nullity.     Ibid 

11.  Where  land  was  levied  on,  an  execution  issued  on  a 
magistrate's  judgment,  and  the  said  judgment,  execution  and 
levy  were  returned  iuto  the  County  Court  and  confirmed,  and 
a  ven.  ex.  was  issued,  and  the  land  sold :  held,  that  in  an  ac- 
tion to  recover  possession  of  the  land,  it  was  not  necessary  to 
show  the  justice's  judgment  and  execution,  but  only  the 
judgment  of  the  Court,  the  execution  sale,  and  deed  by  the 
Sheriff.     Davis  v.  Baker,  67  N.  0  R.  388. 

12.  A  purchaser  at  a  Sheriff's  sale,  as  against  the  defen- 
dant in  the  execution  who  withholds  possession,  is  entitled  to 
recover  as  of  course;  and  the  debtor  cannot  justify  his  act 
of  refusing  to  give  up  the  possession  on  the  ground  of  the 
title's  being  in  a  third  person.  Wade  v.  Saunders,  70  JS".  C. 
11  277. 

13.  In  the  old  action  of  ejectment,  the  fiction  of  a  "lease, 
entry  and  ouster,"  was  adopted  merely  for  the  sake  of  saving 
the  trouble  and  expense  of  making  a  lease  and  entry  ;  there- 
f  re,  no  lease  can  he  set  out  in  the  declaration,  which  could 
n  >t  have  been  made  at  the  time  the  action  was  commenced, 
McLennan  v.  McLeod,  70  N.  C.  R.  304. 

14.  The  d^ed  from  a  sheriff  to  the  purchaser  of  land  sold 
under  a  ven  ex.,  is  evidence  on  a  question  of  title,  notwith- 
standing there  is  endorsed  on  such  ven.  ex.  a  memorandum 
that  there  was  ''  no  sale  for  want  of  compliance."  Maynard 
v.  Moore,  70  N.  C  R.  54(5. 

15.  Where  the  defendants,  deriving  title  under  a  grant 
dated  in  1810,  claimed  up  to  a  line  from  one  point  to  another, 
{■which  line  was  established  and  agreed  to  by  all  parties,)  ex- 
ercising ownership  by  open  and  notorious  acts,  acknowledged 
and  acquiesced  in  by  those  now  claiming  adversely,  since  the 
date  of  a  grant  in  1816,  the  plaintiff's  claim  to  the  locus  in 
quo  extending  to  said  line,  is  barred  by  the  statute  of  limita- 
tions.    Clark  v.   Wagoner,  70  X.  0.  B.  7<>0. 

See  (Abatement — By  the  death  of  parties,  9.)  (Color  of 
Title.)     (Possession.) 


1 38  EJECTMENT— II. 

II.     ACTIONS  EOR  REAL  ESTATE  UNDER  C.  C.  P. 

1.  A  suit  to  recover  the  possession  of  lauds  is  a  civil  action, 
and  not  a  special  proceeding;  therefore,  the  summons  (by  the 
act  of  1868-'69,  oh.  76,)  is  returnable  to  the  term,  and  uot 
before  the  Clerk.     Woodley  v.  Gilliam,  40  N.  C.  R.  (Hi). 

2.  A  civil  action  to  recover  the  possession  of  lmd  under 
the  new  Constitution  and  Code  of  Civil  procedure,  abolishes 
the  fictitious  proceedings  of  the  old  action  of  ejectment,  but 
does  not  surrender  its  advantages.  Hence  in  such  an  action 
no  more  is  put  in  issue  than  the  right  of  entry,  or  the  right 
to  the  present  possession.  This  is  so,  at  least,  when  no  cer- 
tain estate  is  alleged  and  claimed  in  the  complaint,  and  put 
in  issue  by  the  pleading.  Quere,  whether  a  judgment,  Where 
a  certain  estate  is  alleged  and  demanded,  would  be  an  estop- 
pel between  the  parties  as  to  the  right  to  the  estate  alleged? 
Harkey  v.  Houston,  05  K  0.  R.  137. 

3.  Under  the  Code  of  Civil  Procedure,  sec.  CI,  a  landlord 
may  be  joined  as  a  defendant  with  his  tenant;  and  by  the 
act  of  180<)-'7(),  eh.  139,  (Bat.  Rev.  ch.  17,  sec.  382,)  the  teu- 
ant  and  landlord  thus  defending  most  each  give  bond  with 
good  security  to  pay  costs  and  damages  it  the  plaintiff  recov- 
ers, or  if  he  be  not  able  to  give  such  bend,  he  must  make  affi- 
davit of  that  fact,  and  get  the  certificate  of  an  attorney  prac- 
ticing in  the  court  that,  in  his  opinion,  the  plaintif  is  not 
entitled  to  recover.     Ibid. 

4.  When  the  tenant  fails  to  give  such  bond,  or  to  swear 
to  his  answer  when  the  plaintiff  has  sworn  to  his  complaint, 
the  plaintiff  may  take  a  judgment  against  him,  but  he  cannot 
have  an  execution  against  him,  until  the  further  order  of  the 
court  which  will  not  be  made  until  after  the  trial  of  the  issues 
between  him  and  the  landlord  defendant,  and  the  damages 
against  the  tenant  will  be  matter  of  enquiry  on  the  trial  of 
such  issue  with  the  landlord,  or  separately  as  the  court  may 
determine.     Ibid. 

5.  In  an  action  to  recover  the  possession  of  real  estate  it 
is  sufficient  to  allege  in  the  complaint,  that  the  laud  was  in 
the  posssession  of  the  defendant  at  the  time  of  the  issuing  of 
the  summons,  where  the  plaintiff  alleges  title  to  the  tract  des- 
cribed, and  that  defendant  is  in  possession  of  a  part  thereof, 
without  particularly  describing  that  part.  Johnson  v.  Nev- 
ille, 05  N.  C.  R.  077. 

0.  A  B  and  C,  tenants  in  common,  sell  a  tract  of  land  to 
D,  reserving  "  to  themselves  the  right  to  live  in  the  dwelling 
house  upon  said  laud,  and  to  use  all  necessary  outhouses,  and 


EJECTMENT— II.— III.— IV.  139 

to  cultivate  so  much  of  said  land  as  they  may  need  during 
tbeir  natural  lives."  A  and  13  die,  and  the  survivor,  0,  sells 
to  E,  who  takes  possession  of  all  the  tract  not  used  by  0. 
In  a  suit  by  D  against  E,  to  recover  possession  of  the  land 
and  for  damages  :  held,  that  0,  the  life-tenant,  was  properly 
adnii  t 'd  to  defend  the  action  ;  and  that  the  said  action  for 
the  recovery  of  the  land  being  commenced  during  the  life- 
time of  C  was  premature,  and  could  not  be  sustained.  Ken- 
nedy v.  Johnson,  69  X.  C.  R  249. 

III.  DEFENDANT'S  BOND. 

1.  A  vendee  who  enters  into  possession  of  land  under  a 
coutract  of  purchase  and  afterwards  fails  to  pay  the  price 
agreed  upon,  is  not  within  the  terms  of  the  Rev.  Code,  c.  31, 
s.  48,  which  require  tenants  to  give  bond  before  pleading  in 
•ejectment.     Cox  v.  Gray,  Phil.  L.  R.  488. 

2.  In  an  action  to  recover  the  possession  of  realty,  the 
Court  has  the  power  to  allow  the  defendant  to  file  a  bond  for 
•costs,  at  the  second  term  alter  the  answer  has  been  riled  ; 
nor  is  it  necessary  that  any  of  the  defendants  should  sign 
such  bond.      Wall  v.  Fair!;/,  66  N.  (J   K   335. 

3.  In  an  action  for  the  recovery  of  possession  of  land, 
•where  the  defendants  riled  their  affidavit  alleging  they  were 
unable  to  give  the  bond  required  in  eh.  193,  sec.  1 1,  Acts  of 
18G9-'70,  and  counsel  certified  that  the  plaintiff  was  not  en- 
titled to  recover:  held,  to  be  error  in  the  Judge  below  tore- 
quire  the  defendants  to  give  bond  before  they  would  be  per- 
mitted to  defend  said  action.  Jones  v  Fortune,  69  N.  C. 
R.  322. 

IV.  WRIT  OF  POSSESSION. 

1.  Under  the  writ  of  habere  facias  possessionem,  it  is  the 
practice  for  the  plaintiff,  at  his  peril,  to  point  out  the  land 
recovered  to  the  Sheriff,  who  puts  him  in  accordingly. 
Johnson  v.  Neville,  65  N.  C  R.  (577. 

2.  In  actions  to  recover  real  estate  brought  against  a  de- 
fendant in  an  execution  by  a  purchaser  at  a  sheriff's  sale  of 
such  property  as  the  property  of  the  defendant,  in  which  a 
party  claiming  to  be  the  landlord  of  such  defendant,  is  per- 
mitted to  defend,  the  plaintiff  is  entitled  to  judgment  against, 
the  execution  defendant,  but  cannot  be  permitted  to  take 
out  a  writ  of  possession  if  he  tails  to  recover  against  the 
other  defendant.     Isler  v.  Foy,  (i(>  X.  0.  R.  547. 


140  EJECTMENT-V.-ELECTION.-EM  ANCIP  ATIOST 

V.     TRESPASS  FOR  MESNE  PROFITS. 

1.  Trespass  for  mesne  profits  cannot  be  maintained  by 
the  lessor  of  the  plaintiff  in  a  previous  ejectment,  unless  he 
go  into  actual  possession  of  the  premises  after  their  recovery 
in  such  previous  action.     Standi  v.  Calvert,  63  N.  0.  II.  016. 

2.  Neither  confession  of  lease  entry  and  ouster  in  the 
previous  action,  nor  the  fact  that  pending  such  action  the 
plaintiff's  interest  in  the  premises  was  destroyed,  affects  this 
rule.     Ibid. 


ELECTION. 

When  a  testator  directed,  in  his  will,  that  "  the  marriage 
contract  be  carried  fully  into  effect,"  and  in  addition  gives  to 
his  wife  other  legacies  :  held,  that  a  case  of  election  is  not 
presented,  as  the  wife  does  not  claim  under  and  against  the 
will,  but  under  the  will  and  the  contract,  which  is  made  a 
part  of  it.     Morrison  v.  White,  67  N.  0-  It.  253. 


EMANCIPATION. 

1.  A  question  having  been  made  whether  one  who,  upon 
a  purchase  of  a  slave  at  a  sale  by  a  clerk  and  master,  had  paid 
cash  instead  of  giving  bond,  as  required  by  the  order  of  sale, 
could  not  be  compelled  to  comply  with  that  order;  it  was 
held,  that  inasmuch  as  one  incident  to  the  relief  sought  would 
be  to  give  an  option  to  the  defendant  to  have  the  bidding 
opened  again,  the  iuteivening  abolition  of  slavery  rendered  it 
unnecessary  to  decide  the  question.  Broughton  v.  Askew, 
Phil.  Eq.  It.  21. 

2.  A  testator,  who  died  in  1864,  by  will  dated  in  1857, 
gave  their  freedom  to  certain  slaves;  and  then  by  subse- 
quent clause  also  gave  li  to  the  above  named  liberated  slaves" 
property,  both  real  and  persona!  :  held,  (Battle,  J.  dissenting,) 
that  the  effeet  ot  the  recent  emancipation,  such  gift  was 
valid.     Haley  v.  Haley,  Phil.  Eq   It.  180. 

3.  Also,  by  the  Court,  the  emancipation  was  the  primary, 
and  the  method  thereof  but  a  secondary,  object  with  the  tes- 
tator.    Ibid 

4.  Also,  by  Pearson,  C.  J.,  and  Reade, ./.,  that  waiving  all 
questions  to  the  time  and  manner  in  which  emancipation  was 


EMANCIPATION.  141 

effected,  the  testator,  from  the  knowledge  of  the  issue  which 
at  the  time  of  his  death  was  notoriously  involved  in  the  result 
of  the  war  then  existing,  must  now  be  presumed  to  have 
intended  that  if  such  war  resulted  in  emancipation  the  gifts 
should  take  eflect,  otherwise  not.  And,  that  such  intention 
was  uot  against  any  public  policy  which  the  state  can  now 
recognize.  And  that  the  contingency  was  not  too  remote. 
Ibid. 

5.  By  Battle,  J.  that  the  Proclamation  of  President  Lin- 
<3olu  could  have  no  eflect  in  liberating  slaves  where  they  did 
not  come  under  the  control  of  the  armies  of  the  United 
States,  as  these  did  not  until  after  the  death  of  the  testator. 
Ibid. 

(5.  Also,  that  the  phrase  "  liberated  slaves,"  unexplained, 
Include  only  slaves  th.it  were  such  at  the  death  of  the  testator. 
Ibid. 

7.  A  legacy  to  slaves  upon  their  future  contingent  eman- 
cipation (provided  for  in  the  will)  is  not  against  public  pol- 
icy, even  though  a  part  of  the  funds  so  given  is  to  be  made 
up  of  their  own  earnings.  Whedbee  v.  Shannonhouse,  Phil. 
Eq.  E.  283. 

8.  Where  a  will  contemplated  an  emancipation  coupled 
with  removal  to  Liberia  or  some  such  place,  and  provided  a 
certain  fund  to  be  used  to  cover  the  expenses  of  such  removal 
and  also  to  supply  clothing  and  implements  of  husbandry,  and 
and  added  that  if  any  part  of  such  fund  were  left,  it  should 
be  divided  among  the  slaves  emancipated,  held,  that  as  in  the 
event  they  were  emancipated  without  a  removal  by  the 
results  of  the  late  war,  such  slaves  were  entitled  to  the  fund 
undiminished  by  expenses,  &c.     Ibid. 

9.  The  will  for  emancipation  having  been  defeated  as  to 
a  part  of  the  slaves  by  the  dissent  of  the  widow:  held,  that 
as  the  fund  was  bequeathed  to  the  slaves  as  a  class,  those 
who  fitted  the  description  at  the  time  of  division  took  it  all 
and  there  was  no  lapse.     Ibid. 

10.  Semble,  that  the  slaves  who  were  reduced  to  their 
former  condition  by  the  dissent  of  the  widow  are,  as  things 
have  turned  out,  entitled  to  a  share  of  the  fund.     Ibid. 

1 1.  Where  a  man,  at  that  time  a  slave,  on  the  loth  of 
March,  1805,  took  possession  of  a  mule  abandoned  as  unser- 
viceable by  General  Sherman's  army  which  two  days  before 
had  occupied  the  part  of  the  State:  held,  that  the  finder's 
owner,  who  upon  the  1 2th  of  March  had  "deserted"  him, 
acquired  no  title  to  such  mule,  as  against  him.  Bale  v. 
Parser,  63  X.  C.  R.  131. 


142  EMANCIPATION.— EMBLEMENTS. 

12.  The  Act  of  Congress,  1862,  ch.  19.  s.  9,  (July  17tb) 
is  not  unconstitutional, — the  United  States  and  the  Confede- 
rate States  having  been  at  that  time  "belligerents."    Ibid. 

13.  In  cases  of  parol  gifts  of  slaves  under  our  former  laws, 
the  title  to  the  slave  vented  in  the  donee  subject  to  be  di- 
vested, and  did  not  remain  in  the  donor.     Ibid. 

14.  Discussion,  by  Pearson,  C.  J.,  of  the  rights  of  the 
owners  of  slaves  to  things  found  by  the  latter;  also  of  the 
peculiar  and  contingent  condition  ot  slaves  in  North  Carolina 
between  the  period  of  military  occupation  by  the  army  of  the 
United  States,  and  that  of  the  passage  of  the  Ordinance  of 
Emancipation     Ibid. 

lo.  Where  by  agreement  between  a  slave  and  his  owner, 
certain  notes  belonging  to  the  former  were  made  payable  to 
the  latter  for  the  benefit  of  the  former:  held,  that  upon  the 
emancipation  of  the  slave,  the  owner  became  a  trustee  for 
him  as  to  all  such  notes  as  were  then  in  his  hands.  Latti- 
more  v.  Dickson,  03  N.  C.  R.  35b*. 

]0.  As  to  the  time  and  the  means  of  Emancipation. 
Q u  cere.     Hid. 

17.  The  Emancipation  Proclamation  of  President  Lin- 
coln, and  the  Act  of  Congress  of  July,  1802,  by  their  terms 
operated  only  upon  particular  slaves,  and  did  not  affect  the 
institution  of  slavery;  so  also,  the  order  of  General  Scho- 
field,  made  after  the  surrender.  Ilarrell  v.  Watson,  03  N. 
C.  E.  454. 

18.  The  buying  and  selling  of  slaves  in  the  ordinary  course 
of  business,  in  North  Carolina,  in  1804,  was  then  against 
neither  good  morals,  nor  public  policy  ;  and  no  retroactive 
effect  to  that  end  can  be  attributed  to  the  subsequent  eman- 
cipation of  slaves,  and  abolition  of  the  institution  of  slavery 
by  law.     J  bid. 


EMBLEMENTS. 

1.  Parol  evidence  is  competent  to  show  that  a  crop  of 
corn,  growing  upon  land  at  the  time  that  the  latter  was  con- 
veyed by  deed,  did   not  pass  by  the  deed,  but  was  reserved 
by  the  vendor.     Fhjnl  v.  Conrad,  Phil.  L.  It.  190. 

2.  Distinction  in  tins  respect  between  fructus  industrials 
and  fruit  upon  trees,  &c,  discussed  and  stated.     Ibid. 

3.  Where  the  plaintiff  in  a  suit  for  land   at  the   Spring 
Term  of  the  Superior  Court  of  a  county  recovers  judgment 


EMBLEMENTS.— ENTRY.— ESTOPPEL— I.     143 

and  the  defendant  appeals,  but  gives  an  undertaking  for  the 
costs  only,  and  at  the  next  ensuing  term  of  the  Supreme 
Court  in  June,  the  judgment  is  affirmed,  and  then  the.  plain- 
tiff takes  out  a  writ  of  possession  irom  the  Superior  Court, 
which  is  executed,  he  will  be  entitled  to  the  crops  growing 
on  the  land  for  that  year.     (  ox  v.  Hamilton,  09  X  C.  R.  30. 


ENTRY. 

1.  The  lands  granted  to  Henry  MeCulloch  in  1745,  are 
not  liable  to  entry  under  the  provisions  of  the  Rev.  Code,  eh. 
42,  sec.  1.     Hoover  v.  Thomas,  Phil.  L.  R.  184. 

2.  A  grant  under  an  entry  of  such  lands  in  1822  is  void, 
and  its  invalidity  may  be  shown  upon  question  made  in  an 
action  ot  ejectment.     Ibid. 


ESTOPPEL. 

I.    By  record.  !     H«    In 'pais  and  by  deed. 

I.     BY  RECORD. 

1.  No  estoppel  of  record  is  created  against  one  not  a 
party  to  the  record,  even  though  he  had  instigated  the  tres- 
pass, oo  account  of  which  the  action  was  brought,  aided  in 
the  defence  of  the  action,  employed  counsel,  introduced  his 
deeds  in  evidence  and  paid  the  costs,  and  though  he  and  the 
present  defendant  claimed  by  deeds  under  the  present  tres- 
passer.    Falls  v.  Gamble,  GO  N.  C.  R.  455. 

2.  The  principle  of  estoppel  by  record,  by  whicb  an  end 
is  put  to  litigation,  and  parties  and  privies  are  concluded, 
and  cannot  be  heard  to  make  averment  contrary  to  the  find- 
ing of  a  jury,  fixed  by  judgment  in  regard  to  a  fact  precisely 
put  in  issue,  underlies  and  is  acted  upon  in  all  modes  of  pro- 
cedure, and  while,  under  our  present  system  the  complaint 
and  answer  are  usually  so  difluse  that  an  issue  is  seldom 
joined,  with  a  precision,  which  is  required  to  work  an  estop- 
pel ;  yet  when  the  complaint  avers  title  in  the  plaintiff,  the 
answer  admits  possession,  denies  the  title  of  the  plaintiff,  and 
sets  up  title  in  the  defendant,  a  verdict  and  judgment  will 
conclude  the  parties  and  privies  in  respect  to  the  title  as 
completely  as   a  verdict  and  judgment   in  the  old  action  of 


144  ESTOPPEL— I.— II. 

trespass  quare  clausvm  /regit,  where   the   only   plea   was 
liber  urn  tenementum.     Ibid. 

3.  The  action  for  land  under  the  0.  0.  P.  differs,  in  this 
respect  from  the  old  action  of  ejectment,  in  which  the  parties 
are  changed,  and  there  is  no  estoppel  because  of  the  general- 
ity of  the  pleading;  in  this,  in  an  action  for  land  the  defend- 
ant, if  he  does  not  intend  that  his  action  shall  try  the  title, 
should  merely  allege  that  he  is  entitled  to  the  possession, 
and  that  the  defendant  withholds  it,  and  so  if  the  defendant 
does  not  wish  the  title  concluded  by  the  action,  should  merely 
deny  the  allegations  in  the  complaint  so  as  to  make  his 
answer,  in  effect,  a  plea  of  "  not  guilty."     1  bid. 

II.     IN  PAIS  AND  BY  DEED. 

1.  A  fictitious  sale  of  a  horse  to  prevent  it  from  being  im- 
pressed by  the  Confederate  government,  will  not  estop  the 
owner  from  afterwards  asserting  his  title  thereto.  Lutz  v. 
Yount,  Phil.  L.  R.  367. 

2.  The  rule  that  tortfeasors  cannot  dispute  the  title  of  him 
from  whose  possession  they  take  the  thing  in  dispute,  does 
not  apply  where  they  are  sued  by  such  person  iu  trover.  Rose 
v.  Coble,  Phil.  L.  R.  517. 

3.  A  false  representation  not  acted  upon  by  him  to  whom 
it  is  made,  does  not  estop.     State  v.  Thomas,  04  N.  0.  R.  83. 

4  Where  one  of  two  executors  had  informed  creditors  of 
his  that  certain  cotton  in  a  warehouse  belonged  to  him,  and 
thereupon  they  attached  the  same  for  a  debt  due  by  him  : 
held,  that  such  executors  upon  interpleading,  were  not  estop- 
ped by  the  declarations  made  as  above.  Beckham  v.  Witt- 
kowski,  64  N.  C.  R.  646. 

5.  One  who  has,  and  knows  he  has  title  to  property,  who 
is  present  at  a  sale  of  it  as  the  property  of  another,  and  who, 
when  it  is  publicly  announced  before  the  bidding  commences, 
that  all  persons  claiming  the  same  are  requested  to  make 
known  their  claims,  remains  silent  is  estopped  afterwards  from 
setting  up  his  title  against  a  purchaser  at  said  sale.  Ma- 
son v.  Williams,  66  N.  0.  R.  564. 

6.  Oue  who  accepts  a  deed  for  property,  and  claims  and 
acts  under  it,  knows  all  the  facts  constituting  title,  and  in- 
tends to  hold  under  it  if  he  can,  has  such  knowledge  as  the 
law  intends  by  that  term,  and  every  reason  applies  why  it 
should  be  disclosed,  which  applies  in  the  very  rare  case 
of  absolute  knowledge  that  the  title  is  good.     Ibid. 

7.  There  is  a  qualification  of  the  rule  to  the  extent,  that 


ESTOPPEL— II.  145 

the  true  owner  must  mean  for  the  purchaser  to  act  upon  his 
representations,  but  one  comes  within  this  qualificatiou  even, 
who,  by  his  conduct,  whether  it  be  fraudulent  and  malo  animo 
or  simply  negligent  and  oinissive,  gives  others  reasonable 
ground  to  believe  that  he  has  no  claim  (for  in  this  connection 
title  and  claim  are  synonymous)  to  the  property,  and  such 
others  do  so  believe  and  act  on  such  belief.     Ibid. 

8.  Not  only  the  uberrima  fides  but  that  simple  bona  fides 
which  the  law  exacts  from  every  man,  required  the  true  own- 
er to  mate  known  his  claim  at  said  sale  or  never ;  he  should 
have  given  all  bidders  the  advantages  he  possessed  from  his 
exclusive  knowledge,  his  omission  to  do  so  amounted  to  a 
negligence  which  imperilled  the  interests  of  others  and  gave 
him  an  unfair  advantage  over  them,  enabling  him,  if  he  could, 
to  buy  low,  and  thereby  secure  an  indisputable  title,  or,  if 
another  out-bid  him,  t<>  fall  back  on  his  reserved  claim.    1  bid. 

1*.  The  registry  of  the  plaintiff's  title  did  not,  per  se,  oper- 
ate as  notice  to  the  purchaser.     Ibid. 

10.  One  claiming  under  a  deed  is  not  estopped  by  it,  to 
show  that  his  bargainor  did  not  have  title  at  a  time  anterior 
to  the  delivery  ot  his  deed.  Frey  v.  Bamsour,  60  N.  0.  R.  46b*. 

11.  No  estoppel  arising  from  a  sheriff's  deed  is  fed  by  an 
after  acquired  interest — hence  when  A  had  no  title  to  land 
sold  under  execution  as  his  property,  so  that  nothing  passed 
at  the  time  by  such  deed,  one  who  afterwards  takes  a  deed 
trom  the  defendant  in  such  execution  is  not  estopped  to  show 
that  in  fact  his  vendor  had  no  title  at  the  date  of  the  execu- 
tion sale.     Ibid. 

12.  Neither  is  such  second  vendee  estopped  to  show  want 
of  title  as  above  stated  by  any  rule  of  practice ;  as  the  rule 
that  when  both  parties  claim  under  the  same  person,  neither 
shall  be  permitted  to  deny  his  title  has  been  adopted  for  the 
purpose  of  aiding  the  administration  of  justice  by  dispensing 
with  the  necessity  of  requiring  the  proof  of  original  grants 
and  mesne  conveyances,  and  after  the  rule  has  effected  this 
purpose  it  is  functus  officio,  and  the  matter  is  then  open  in 
regard  to  the  title  subject  to  the  doctrine  of  estoppel,  and 
such  other  principles  as  may  be  applicable.     Ibid. 

13.  The  rule  is,  that  when  one,  by  his  conduct,  uninten- 
tionally, gives  another  reasonable  ground  to  believe  that  a 
certain  state  of  facts  exists  and  the  other  acts  on  the  belief 
so  induced,  that  he  will  be  damaged  if  it  is  not  true,  the 
person  so  inducing  is  estopped  as  to  the  other,  afterwards  to 
deny  the  existence  of  such  a  state  of  facts  Miller  v.  The 
Land  and  Lumber  Company,  GO  N.  0.  K.  503. 

10 


146 


ESTOPPEL— IL— EVIDENCE— I. 


14.  A  bidder  for  laud  sold  under  an  execution  in  his- 
favcr,  and  who  received  the  proceeds  of  such  sale,  is  not 
thereby  estopped  from  showing  in  a  subsequent  and  different 
proceeding,  that  the  laud  belonged  to  some  one  else  other 
than  the  defendant  in  his  execution.  Wade  v.  Saunders,  70 
N.  C.  E.  70. 

See  (Agent  and  Principal — Of  the  liability  of  an  agent  for 
the  acts  of  his  principal.)     (Covenant  7.)     (Notice  2.) 


EVIDENCE. 


I. 

Its  competency  or  incompetency. 

XIII. 

II. 

How  witnesses  are  to  be  ex- 
amined. 

XIV. 

III. 

Impeaching  the  credibility  of 

XV. 

witnesses. 

XVI. 

IV. 

Depositions. 

XVII. 

V. 

Hearsay  and  common  reputa- 

tion. 

XVIII. 

VI. 

Experts  and  others  f  xpressing 

opinions. 

XIX. 

VII. 

Proof  of  the   character    of   a 

party. 

XX. 

VIII. 

Its  relevancy  or  irrelevancy. 

IX. 

Parol  evidence,  when  admissi- 
ble. 

XXI. 

X. 

Admissions,    declarations   and 
acts  of  parties  and  privies. 

XXII. 

XL 

Public  documents. 

XXIII. 

XII. 

1! (-cords  of  court  and  records 
and  by-laws  of  corporations. 

Proof  of  official  bonds. 

Books  of  entries,    accounts, 
receipts,  orders,  &g. 

Confessions. 

Dying  declarations. 

In  criminal  proceedings  and. 
indictments. 

In  cases  relating  to  wills  and 

testaments. 
When  evidence  is  or  is  not 

required. 
On  whom  is  placed  the  bur- 
den of  proof. 
When  the  jury  is  to  decide 
upon  its  effect. 

Who  to  decide  upon  its  com- 
petency. 

Grounds  of  objection  to  evi- 
dence to  be  stated. 


I.  ITS  COMPETENCY  OR  INCOMPETENCY. 


1.  Evidence  to  show  that  a  tract  of  land  of  a  particular 
description  in  a  will  include  another  tract  having  another 
description  in  such  will,  is  competent.  Brandt  v.  Hunter? 
Phil.  L.  P.  1. 

2.  Evidence  that  one  in  possession  of  a  tract  of  land  de- 
clared that  he  held  it  as  tenant  of  a  certain  person,  is  admis- 
sible, even  although  it  be  shown  that  such  tenancy  was  crea- 
ted by  a  written  instrument  which  is  not  produced.  Thomp- 
son v.  Matthews,  Phil.  L.  R.  15. 

3.  Previously  to  the  act  of  1866  in  relation  to  evidence,  the 
relator  in  an  action  brought  in  the  name  of  the  State,  was  not 
competent  as  a  witness.     State  v.  Mangum,  Phil.  L.  11.  177. 


EVIDENCE— I.  147 

4.  In  an  action  of  trespass  for  a  violent  assault  and  bat- 
tery, evidence  that  two  weeks  before,  one  of  the  defendants 
(who  are  brothers)  had  been  beaten  by  the  plaintiff,  is  not 
competent;  nor  is  it  competent  to  show  that  several  hours 
before  on  the  same  day,  the  plaintiff  had  threatened  to  beat 
one  of  the  defendants,  and  that  such  threat  had  been  com- 
municated to  the  defendant.  Johnston  v.  Crawford,  Phil. 
L.  R.  342. 

5  A  record  of  a  conviction,  and  of  the  payment  of  the 
fine  and  costs  incurred  under  an  indictment  for  an  assault 
and  battery,  is  admissible  in  mitigation  of  punitory  damages 
in  a  civil  action  for  the  offence.     Ibid. 

0.  In  estimating  damages  in  such  actions,  the  jury  can 
take  no  notice  of  a  sum  of  money  paid  into  court  for  the  use 
of  the  plaintiff  at  a  former  term  upon  leave  granted,  the  plain- 
tiff having  refused  to  receive  it.     Ibid. 

7.  A  question  having  arisen  in  the  course  of  a  trial  as  to 
an  arrangement  in  regard  to  a  horse  which  was  the  subject 
of  controversy :  held,  that  evidence  of  a  similar  arrangement 
at  the  same  time  between  the  parties  in  regard  to  a  cow  was 
relevant,  either  as  part  of  the  res  fiesta?,  or  as  part  of  the  con- 
versation and  thus  showing  the  entire  arrangement.  Lutz 
v.  Yount,  Phil  L  R.  3G7. 

8.  Where  one  had  been  induced  to  remove  from  Tennes- 
see and  come  to  this  State  by  a  promise  of  employment  and 
other  pecuniary  advantage,  and  after  doing  so  he  and  the 
person  who  made  the  promise  (his  sister)  quarrelled,  he  in- 
flicted a  battery  upon  her,  and  she  refused  to  comply  with  her 
engagement:  held,  upon  a  reference  of  their  "matter  in  dis- 
pute," the  sister  had  a  light  to  introduce  testimony  as  to  the 
battery,  for  the  consideration  of  the  referee.  Walker  v. 
Walker,  Phil.  L.  R.  545. 

9.  The  act  (Rev.  Code,  ch.  107,  sec  71,)  which  renders 
persons  of  color  incompetent  as  witnesses  in  certain  cases,  is 
repugnant  to  the  Constitution,  and  is  repealed  thereby. 
State  v.  Underwood,  63  N.  C.  R.  98. 

10.  One  who  is  under  sentence  of  death  for  a  felony,  is 
neverthless  competent  as  a  witness.     Ibid. 

11.  To  show  the  disposition  of  a  witness  towards  the 
prisoner,  he  may  be  asked  whether  he  had  not  heard  that 
the  prisoner  had  been  a  witness  against  him  for  the  same 
offence.     State  v.  Harston,  b*3  N.  0.  R.  294. 

12  Where  a  witness  stated,  in  reply  to  the  question 
whether  the  prisoner  had  not  been  sworn  against  him, — that 
lie  had  not  heard   him  examined,  but   had  heard  that  the 


148  EVIDENCE— I. 

prisoner  was  a  witness,  and  swore  against  him  :  held,  Pear- 
son, C.  J.,  dubitante,  that  the  latter  part  of  the  answer  was 
sufficiently  responsive,  to  render  it  regular  lor  the  prisoner 
to  object  to  the  ruling  of  the  court  Upon  its  competency, 
without  any  further  examination  upon  his  part      Ibid. 

I'd.  Under  the  Act  of  1800,  ch.  43,  a  wife  was  not  a  com- 
petent witness  for  her  husband.  Rice  v.  Keith,  03  lN".  0.  E. 
31V). 

14.  It  is  now  otherwise,  under  the  Code  of  Civil  Proce- 
dure, sec  341.     Ibid. 

15  An  administrator,  upon  an  issue  in  regard  to  assets, 
cannot  testify  to  a  transaction  betwixt  himself  and  his  intes- 
tate, whereby  a  prima  facie  indebtedness  of  his  own  to  the 
estate,  was  discharged ;  he  may,  however,  testily  as  to  trans- 
actions by  himself  after  the  death  which  relieve  him  from  the 
charge  of  having  assets  in  hand.  Whitendes  v.  Green,  04 
N.  O.  R,  307. 

10.  The  plaintiff  in  a  suit  is  (by  O.  C.  P  ,  sec  343)  incom- 
petent to  prove  that  the  intestate  of  the  defendant  actually 
signed  a  particular  paper,  although  he  is  competent  to  prove 
his  hand-writing.     Peoples  v.  Maxwell,  04  IS".  C  R.  313 

17.  What  was  once  said  by  the  plaintiff  to  the  adminis- 
trator, in  relation  to  acts  or  words  of  the  deceased,  (intro- 
duced to  get  the  benefit  of  admissions,  deducible  from  a 
failure  to  deny,  by  the  administrator,)  when  such  acts  or 
words  were  not  within  the  personal  knowledge  of  the  admin- 
istrator,— is  also  incompetent.     Ibid. 

18.  The  exception  to  the  rule  allowing  parties  to  testify, 
i.  e.,  as  to  transactions  between  such  party  and  a  person 
deceased  ;  does  not  extend  to  cases  where  a  defendant  is 
offered  as  a  witness  to  testify  that  a  bond  which  was  given 
to  a  person  deceased,  and  which  is  the  subject  matter  of  the 
suit,  was  in  blank  as  to  the  amount  payable  when  executed 
by  him;  having  been  filled  up  afterwards  in  his  absence,  and 
without  due  authority.  Isenhour  v.  Isenhour,  04  N.  C.  R  040. 

19.  Evidence  by  a  party,  that  when  a  bond  was  executed 
and  placed  in  the  hands  of  on  agent  for  negotiation,  it  was 
in  blank  as  to  the  name  of  the  obligee,  and  that  the  agent 
Lad  no  proper  authority  for  filling  such  blank,  is  not, — such 
obligee  being  dead  at  the  time  of  the  examination,  evidence 
of  a  transaction,  Ssc,  with  a  deceased  person,  &c,  within 
the  terms  of  the  C.  C  P.,  s.  343,  excluding  evidence  by  par- 
ties, in  regard  to  such  transactions,  &c.  Brower  v.  Hughes, 
04  KT.  C.  R.  042. 

20.  Whether  a  witness  offender  years  has  sufficient  iutel- 


EVIDENCE— L  ]  19 

Hgence  and  sense  of  the  obligation  of  an  oath  to  be  compe- 
tent, is  a  matter  within  the  discretion  of  the  Judge  who  pre- 
sides at  the  trial,  and  therefore,  cannot  be  received  upon 
appeal.    State  v.  Manuel,  64  N.  C  R.  601. 

581.  Where  Ithe  testator  of  the  plaintiffs  and  the  defen- 
dant went,  in  the  lifetime  of  the  testator,  to  a  third  pei 
and  had  a  conversation  with  him  in  relation  to  the  subject  of 
the  controversy,  and  at  the  trial  both  the  testator  and  the 
said  third  person  were  dead,  it  was  hr/rf,  that  according  to 
the  true  intent  and  meaning  of  the  proviso  to  the  343d 
of  the  Code  of  Civil  Procedure,  the  defendant  could  not  tes- 
tify to  the  conversation  between  the  testator  and  such  third 
person.     Hattyburton  v.  Dobson,  65  X.  C  tt.  88. 

22.  Though  a  plaintiff  could  not  be  admitted  as  a  witn< 
under  the  C  0.  P.,  sees.  342  and  343,  to  prove  a  special  con- 
tract with  the  intestate  of  the  defendant  for  the  service  of 
slaves  before  their  emancipation,  yet  be  is  competent  to 
prove  that  I  he  intestate  had  the  slaves  in  possession  and 
enjoyed  their  services.     Gray  v.  Cooper,  63  X   0.  K.  183. 

23.  When  the  administrator  of  an  intestate  asks  of  the 
plantiff,  who  had  offered  himself  as  a  witness,  whether  there 
was  not  a  special  contract  between  himself  and  the  intestate, 
with  the  view  to  defeat  a  recovery  on  an  implied  contract,  it 
i-  competent  for  the  plaintiff  to  prove  by  himself,  or  by 
another  witness,  all  the  particulars  going  to  make  up  or 
qualify  such  fact,  and  put  it  in  its  proper  light      Ibid. 

24.  When  a  defendant  in  a  civil  action  offered  in  evidence, 
;t-  ;i  counterclaim  to  plaintiff's  demand,  a  note  bearing  date 
in  October,  18o2,  and  himself  as  a  witness  to  rebut  the  pre- 
sumption of  payment:  held,  that  under  the  act  of  1800,  he 
was  a  competent  witness  for  the  purpose.  Albright  v.  Al- 
hright,  07  X.  C   R/27. 

25.  A  plaintiff  is  not  a  competent  witness  to  prove  any 
transaction  between  himself  and  his  deceased  guardian;  but 
he  is  competent  to  prove  any  other  transaction  of  his  guar- 
dian ;  e.  (j ,  a  sale  of  his  property  by  his  guardian.  Dobbin 
v.  Osborne,  07  X.  0.  J:  259. 

20.  Under  the  act  of  1868-'69  ch.  209,  sec.  4,  the  wife  is 
a  competent  witness  against  her  husband  "as  to  the  (act  of 
abandonment,  or  neglect  to  provide  adequate  support."  She 
is  not,  however,  a  competent  witness  to  prove  the  fact  of 
marriage.     State  v.  Brown,  07  X.  0   R.  470. 

27.  In  a  suit  for  the  recovery  of  a  negotiable  note  indor- 
sed, the  evidence  of  an  administrator,  (the  plaintiff,)  is  ad- 
missible to  prove  that  his  intestate  bought  the  note,  and 


150  EVIDENCE— I.— 1 1. 

gave  therefor  full  value.     Andrew's,  Admrr.,  v.  McDaniel,  68 
K  0.  R.  385. 

28.  Iu  action  against  a  surety  on  a  constable's  bond, 
alleging  certain  breaches  of  the  condition  .of  the  bond  by  the 
constable,  now  dead,  the  plaintiff  is  not  a  competent  witness 
to  prove  any  transaction  or  conversation  between  himself 
and  such  deceased  constable  in  regard  to  the  matters  in 
controversy.     State  dc  Bryant  v.  Morris,  69  N.  0.  E.  444. 

29.  When  a  party  to  a  suit,  who  is  in  interest  really  a 
plaintiff,  but  appears  as  a  party  defendant,  gives  evidence  as 
to  a  transaction  with  a  deceased  testator,  it  renders  compe- 
tent the  evidence  of  a  co-defendant,  touching  the  same  trans- 
action as  provided  for  by  sec.  343,  0.  C.  P.  Redman  v. 
Redman,  70  N.  C  R.  251. 

30.  If  the  declaration  of  a  testator  made  in  his  life-time, 
not  in  the  presence  of  the  defendant,  could  not  be  given  in 
evidence,  because  of  his  not  being  permitted  to  make  evi- 
dence for  himself,  his  administrator  will  not  be  allowed  to 
prove  such  declaration  after  his  death.     Ibid 

31.  At  common  law,  neither  the  husband  nor  the  wife  is 
allowed  to  prove  the  fact  of  accessor  non-access;  and  as 
such  rule  is  founded  "upon  decency,  morality  and  public 
policy,"  it  is  not  changed  by  chap  43,  sec  15,  Bat.  Rev.,  (0. 
O.  P.,  sec.  340,)  allowing  parties  to  testify  in  their  own  be- 
half.    Boykin  v.  Harris,  70  N.  0.  R.  262. 

See  (Bastardy  1,  9,  14.)  (Evidence — Its  relevancy  or 
irrelevancy  4 )  (Evidence — In  Criminal  Proceeding  and 
Indictments  2,  3,  4,  9,  3i,  30,  37,  38,  41,  42,  44,  45,  48, 
49.) 

II.     HOW  WITNESSES  ARE  TO  BE  EXAMINED. 

1.  Where  a  defendant,  examined  in  his  own  behalf,  was 
asked  what  conversation  he  had  with  a  witness  examined  for 
the  plaintiff,  and  the  testimony  of  that  witness  was  repeated 
to  him  ;  held,  not  to  be  objectionable  as  leading.  Peg  ram  v. 
Stoltz,  70  N.  C.  R.  144. 

2.  The  court  will  not  review  the  discretion  of  a  Judge  in 
allowing  leading  questions,  under  certain  circumstances, 
unless  error  or  abuse  plainly  appears      Ibid. 

3.  A  defendant  who  offers  himself  as  a  witness  iu  his 
behalf,  may  be  asked  if  he  has  not  disposed  of  his  property 
so  as  to  avoid  the  payment  of  any  recovery  iu  the  action  than 
being  tried ;  aud  if  since  such  disposal  he  has  not  been 
engaged  in  selling  the  same  property,  and  his  answers  are 


EVIDENCE— II.— III.  151 

proper  subjects  for  comment  before  the  jury.     Lasssiter  v. 
Phillips,  70  N.  C.  R.  402. 

4.  It  is  also  competent  to  ask  such  witness  if  he  had  not 
gone  to  New  York  to  consult  a  spiritualist  in  regard  to  the 
money,  the  subject  of  the  present  controversy.     Ibid. 

III.    IMPEACHING  THE  CREDIBILITY  OF  WITNESSES. 

1.  Where  an  imputation  against  the  character  of  a  wit- 
ness is  made  by  the  very  question  which  is  put  to  him,  evi- 
dence in  support  to  that  character  becomes  competent. 
State  v.  Cherry,  63  N.  C   R.  493. 

2.  A  witness  called  merely  to  sustain  or  impeach  the 
character  of  another  witness  in  the  cause,  may  himself  be 
either  impeached  or  sustained.     Ibid. 

3.  If,  upon  the  cross-examination  of  a  witness,  he  is  asked 
.as  to  collateral  matters,  and  is  examined  as  to  particulars 
not  presented  by  the  issues,  the  party  is  bouud  by  the  answer, 
and  will  not  be  allowed  to  go  into  evidence  aliunde,  in  order 
to    contradict  the  witness.      Clark  v.  Clark,  05  N.  0.  R. 

055. 

4.  It  is  settled,  that  a  witness,  who  swears  to  the  gene- 
ral bad  character  of  another  witness,  may,  upon  cross-exam- 
ination, be  asked  to  name  the  individuals  who  had  spoken 
disparagingly  of  the  witness  and  what  was  said.  This  is 
every-day  practice.  There  is  a  difference  between  an  exam- 
ination in  chief  and  a  cross-examination,  when  the  party 
endeavoring  to  sustain  the  witness,  whose  general  character 
is  attacked,  may  go  into  particulars  as  to  the  person,  and 
what  they  said.     State  v.  Perkins,  00  N.  0.  R.  120. 

5.  When  a  witness  was  called,  to  impeach  the  character 
of  another  witness,  and  stated  that  he'did  not  know  the  gen- 
eral character  of  said  witness,  he  ought  to  have  been  told  to 
stand  aside.  Counsel  have  no  right  to  cross-examine  their 
own  witnesses.     Ibid 

0.  To  disparage  a  witness,  on  cross-examination,  he  may 
be  asked  and  required  to  answer  almost  any  question,  unless 
the  answer  may  subject  him  to  indictment,  or  to  a  penalty 
under  a  statute.     State  v.  Davidson,  07  N.  C.  R.  119. 

7.  Therefore,' ou  a  trial  of  A  for  murder,  after  sever- 
ance in  an  indictment  against  A,  Band  C;  held,  that  B,  who 
having  previously  been  convicted  was  examined  as  a  witness 
for  the  State,  might  be  asked  by  the  defendant's  counsel,  for 
the  purpose  of  contradicting  him,  whether  he  did  not  say  to 
the  counsel  of  C,  while  conversing  with  him,  in  jail,  "that  he 


152  EVIDENCE— III.— IV— V. 

was  sorry  A  and  C  were  put  in  jail  for  Lis  devilment,  &c."" 
Ibid. 

8.  A  witness  is  not  competent  to  testify  as  to  the  gen- 
eral character  of  another  witness,  simply  because  he  had 
known  him  several  years,  when  the  question  is  asked  with- 
out explanation,  and  without  the  preliminary  question, 
whether  he  knew  the  general  character  of  the  witness,  and 
the  means  by  which  he  had  acquired  the  knowledge.  State 
v.  Speight,  09  K  C.  E.  72. 

9.  A  plaintiff,  who,  as  a  witness,  relates  a  conversation 
he  had  with  the  defendant,  which  is  by  the  defendant  contra- 
dicted in  a  material  particular,  can  corroborate  his  testimony 
by  showing  by  another  witness  that  he  made  substantially 
the  same  statement  to  that  witness,  soon  after  the  conversa- 
tion occurred,  as  he  made  on  the  trial.  Bullinqer  v.  Marshall^ 
70  K  0.  E.  520. 

See  (Evidence— In  Criminal  Proceedings  and  Indictments, 
1,  18,  19,  24,  25,  26,  5*.) 

IV.     DEPOSITIONS. 

1.  Where  a  deposition  was  found  among  the  papers,  with 
a  commission  unattached,  and  an  envelope  which  appeared 
to  have  been  sealed  up  and  afterwards  broken  open:  held, 
that  this  was  sufficient  evidence  to  justify  the  clerk  in  finding, 
that  the  deposition  had  been  taken  under  such  commission,, 
and  had  been  returned  to  him  sealed  up  by  the  commission- 
er; and  therefore  that  the  clerk  had  done  right  in  passing 
upon  and  allowing  such  deposition  to  be  read.  Hill  v.  Bell, 
Phil.  L.  E.  132. 

2.  It  is  too  late  to  object  to  the  reading  of  a  deposition 
after  a  trial  has  begun,  merely  on  account  of  irregularity  in 
the  taking  of  it,  provided,  it  shall  appear  that  the  party  ob- 
jecting had  notice  of  its  being  taken,  or  had  notice  that  it  had 
been  taken  and  was  on  tile  long  enough  before  the  trial  to 
enable  him  to  present  the  objection.  Carson  v.  Mills,  69  N. 
C.  E.  32. 

V.     HEARSAY  AND  COMMON  REPUTATION. 

1.  The  exceptions  to  the  general  rule  excluding  hearsay 
evidence,  do  not  embrace  the  declarations  of  a  deceased  per- 
son as  to  the  boundary  lines  of  land  where  such  person  was 
in  possession  as  owner  at  the  time  the  declarations  were 
made.     Heel  rick  v.  Gobble,  63  X.  L.  E.  48. 


EVIDENCE— V— YI.  153 

2.  A  mere  collateral  declaration  as  to  a  past  transaction 
is  not  admissible  as  part  of  the  res  yestce  ;  therefore,  where 
one  whilst  engaged  in  renting  a  store  room,  and  arranging 
for  removing  goods  thereto,  stated  that  "  he  had  bought 
some  goods  from  Mr.  Haywood  :"  held,  to  be  admissible. 
Decries  v.  Haywood,  63  N.  0.  R.  207. 

3.  There  is  an  exception  to  the  general  rule  against  hear- 
say evidence,  by  which  a  matter  of  general  interest  to  a  con- 
siderable class  of  the  public,  may  be  proved  by  reputation 
among  that  class :  therefore,  it  is  competent  for  a  witness  to 
state  the  price  of  cotton,  from  information  received  through 
commercial  circulars,  prices  current  and  correspondence  and 
telegrams  from  his  factor.  Smith  v.  N.  C.  R.  R.  Co.,  68 
N.  0.  R.  107. 

4.  A  sues  B  for  assisting  C  to  remove  from  the  State, 
alleging  such  removal  to  have  been  for  the  purpose  of  de- 
frauding C's  creditors,  of  whom  A  was  one ;  the  declaration 
of  0,  contained  in  a  letter  to  A.  is  not  evidence  against  B, 
unless  the  complicity  of  B  and  0  be  established  aliunde,  and 
such  declarations  cannot  be  received  to  prove  such  complicity. 
Bryce  v.  Butler,  70  N.  0.  R.  585. 

5.  Because  the  presiding  Judge,  after  objection,  permit- 
ted the  plaintiff  to  read  the  body  of  a  letter  which  was  un- 
important and  irrelevant,  is  no  reason  that  he  should  permit 
the  reading  of  the  postcript  which  was  relevant,  upon  the 
ground  that  when  part  of  a  declaration  is  received  as  evidence, 
the  party  is  entitled  to  have  the  whole  thereof  go  to  the  jury. 
Ibid. 

VI.     EXPERTS  AND  OTHERS  EXPRESSING  OPINIONS. 

1.  A  persou  tendered  as  a  witness  to  express  an  opinion 
whether  the  symptoms  attending  a  diseased  mule  were  recent 
or  otherwise,  upon  preliminary  examination,  stated  that  he 
was  a  physician  of  eleven  years  standing,  and  that  although 
he  had  no  particular  knowledge  of  the  diseases  of  stock,  yet 
from  his  books,  observation  and  general  knowledge  of  the  dis- 
eases of  the  human  family,  he  could  tell  whether  certain  symp- 
toms indicate  that  the  disease  is  recent  or  otherwise;  and 
although  he  never  saw  a  case  of  glanders  (unless  the  one  in 
question  were  such,)  yet  he  was  able  to  form  an  opinion 
whether  the  symptoms  of  the  mule,  indicated  a  disease  of  re- 
cent or  of  long  standing:  held,  that  he  was  a  competent  wit- 
ness for  the  purpose  indicated.  Jlorton  v.  Green,  64  N.  0. 
R.  64. 


154  EVIDENCE— VI.— VII— VIII. 

2.  The  opinion  of  an  expert,  as  to  cause  of  death,  is  com- 
petent evidence  for  the  State.  State  v.  Jones,  68  N.  0.  R.  443. 

3.  A  witness  may  be  allowed  to  express  his  opinion  as  to 
the  state  of  mind  of  another  witness  during  certain  periods ; 
and  it  is  not  necessary  that  such  witness  should  be  an  expert 
or  a  physician.     State  v.  Ketchley,  70  N.  0.  R.  621. 

See  (Evidence — In  cases  relating  to  Wills  and  Testaments, 
3.)  (Evidence — In  Criminal  Proceedings  and  Indictments, 
32.)     (Rape,  3.)     (Witness) 

VII.  PROOF  OF  THE  CHARACTER  OF  A  PARTY. 

In  an  action  against  several  co-obligors  to  a  bond  in 
which  one  only  pleads  non  est  factum,  it  is  not  competent  for 
the  plaintiff  on  the  trial  of  the  issue  with  him  to  prove  that 
he  and  another  of  the  obligors  were  strong  personal  friends, 
and  it  is  also  incompetnt  for  the  plaintiff  to  prove  that  all  the 
co-obligors  of  the  contesting  defendants  were  men  of  good 
character.     HeilUj  v.  Dumas,  do  N.  C.  Ii  214. 

VIII.     RELEVANCY  AND  IRRELEVANCY. 

1.  Where  the  defendant  gave  a  receipt  to  the  plaintiff  for 
all  the  fishing  materials,  and  "apparatus  owned  by  W.  &  H.," 
it  is  competent  for  plaintiff  to  show  that  defendant  represent- 
ed that  all  of  said  seine,  &c,  was  at  a  particular  place,  as 
such  evidence  tends  to  show  where  plaintiff'  was  to  receive 
the  articles  purchased.      Wilson  v.  Holley,  (Hi  N.  C.  R  407. 

2.  Where,  in  an  action  upon  a  note  for  tue  lease  of  land, 
one  of  the  plaintiffs  is  introduced  as  a  witness,  and  it  is  pro- 
posed to  ask  him  whether  he  did  not  know  the  purpose  of  the 
lease:  held,  that  such  question  is  immaterial,  as  it  could  make 
no  difference  whether  lb )  plaintiff's  knew,  or  did  not  ki  o  v  the 
purpose  of  the  lease.     McKesson  v.  Jones,  66  N.  C.  H.  258. 

3.  When  a  deed  of  trust  was  attacked  for  fraud,  and  the 
trustor  was  offered  as  a  witness,  to  prove  that  there  was  an 
agreement  between  him  and  the  trustee,  that  the  latter  should 
hold  the  property  conveyed  until  the  trustor  should  be  able 
to  pay  the  debts  secured  from  other  source  :  held,  that  the 
evidence  should  be  permitted  to  go  to  the  jury  for  what  it 
was  worth,     lsler  v.  Dewey,  67  N=  C  Ii.  93 

4.  In  such  case,  the  trustee  having  died  and  the  property 
having  been  conveyed  by  a  substituted  trustee  to  the  defen- 
dants, the  trustor  is  not  excluded  by  sec.  353,  0.  C.  P.,  from 
being  a  witness  for  the  plaintiff,  who  also  claimed  title  through 
Lim.     Ibid. 


EVIDENCE— Till.  155 

5.  Where  a  witness  was  examined  to  prove  that  a  Rail- 
road Company  had  failed  to  deliver,  to  another  Company, 
four  bales  of  cotton  according  to  its  undertaking,  it  was  not 
competent  for  said  witness  to  state  the  conclusion  to  which 
he  had  come,  by  a  comparison  of  the  receipts  given  by  the 
latter  Company  for  a  week's  shipment,  and  the  books  kept 
by  the  plaintiff  in  the  action.  McCombs  v.  N  G.  B.  E.  Co., 
ij"  ST.  C.  R.  193. 

0.  To  avail  himself  of  error  in  the  rejection  of  evidence,  a 
party  must  show  distinctly  what  the  evidence  was,  in  order 
that  the  relevancy  may  appear,  and  that  a  prejudice  has 
arisen  to  him  on  account  of  its  rejection.  State  v.  Pur  die, 
iil  N.  0.  JR.  326. 

7.  Evidence  that  the  grantee  in  a  certain  deed,  which  is 
impeached  for  fraud,  and  who  afterwards  conveyed  the  land 
to  his  step-daughter,  the  wife  of  the  grantor,  in  consideration 
"of  love  and  affection,"  attempted  before  that  time  to  pur- 
chase for  his  step-daughter  another  house  and  lot,  is  not  ad- 
missible for  the  purpose  of  establishing  that  the  deed  to  him- 
self was  bona  fide  and  for  a  fair  consideration.  McCullock  v. 
Doa\  and  Wife,  08  N.  C.  R.  207 

8.  "Tax  lists"  are  not  admissible  for  the  purpose  of 
proving  the  truth  of  facts  therein  set  out.  "Tax  lists"  as 
an  independent  tact,  when  relevant,  are  admissible  as  evi- 
dence of  such  fact;  and  in  repelling  a  charge  of  fraud  rest- 
ing, among  other  circumstances,  on  the  allegation  that  the 
pretended  price  paid  for  a  tract  of  land  exceeded  very  much 
its  value,  it  is  competent  to  prove  the  fact  that  it  was  entered 
at  a  certain  value  on  the  "  tax  lists."  CardweU,  adrn'r.,  v. 
Mebane  et  al,  08  N.  C.  R.  485. 

9.  Evidence  of  the  friendly  feeling  existing  between  two 
of  the  joint  obligors  of  a  bond,  offered   for  the  purpose  of 
proving  that  one  of  them,  who  denied  the  fact,  signed  the 
same,  is  inadmissible.     Heileij  v.  Dumas,  et  al,  07  3S.  C.  R.  200. 

10.  Proof  without  allegation  is  as  ineffective  as  allegation 
without  proof:  hence,  the  court  cannot  take  notice  of  any 
proof  unless  there  be  a  corresponding  allegation  McKtev. 
IAneberger,  0!)  N.  C.  R.  217. 

11.  Evidence  of  a  distinct,  substantive  offence  cannot  be 
admitted  in  support  of  another  offence.  State  v.  Shnford, 
09  N.  C.  R.  480. 

12.  In  an  action,  brought  to  subject  certain  lands  (pur- 
chased by  defendant,)  to  the  operation  of  an  alleged  verbal 
tinst,  to  set  up  which  it  is  material  that  all  of  certain  parties 
contributed  to  the  payment  of  the  debt  charged  upon  the 


156  EVIDENCE— IX. 

land,  evidence  tending  to  show  that  one  of  such  parties  paid 
nothing  towards  said  debt,  and  claimed  no  interest  in  the 
land,  is  material  and  admissible,  and  that  his  Honor  erred  in 
excluding  it  on  the  trial  below.  Taylor  v.  Dudley,  70 
N".  0.  R.  146. 

IX.     PAROL  EVIDENCE  WHEN  ADMISSIBLE. 

1.  Where  a  bond  for  money  does  not  profess  to  set  forth 
the  other  terms  of  the  contract  in  the  course  of  which  it  was 
given,  parol  evidence  is  cempetent  to  establish  them : 
Woodfin  v.  Sluder,  Phil.  L.  R.  200. 

2.  Therefore,  where  proclamation  was  made  at  a  hiring  by- 
executors  in  January,  18'j5,  that  such  money  would  be 
received  as  would  pay  the  debts  of  the  estate,  reference  being 
made  specially  to  a  bank  debt,  held,  that  although  no  allu- 
sion to  this  was  contained  in  the  bonds  given  for  such  hires, 
it  was  competent  for  the  obligors  to  show  the  proclamation, 
and  also  the  market  value  of  the  notes  of  the  bank.     Ibid. 

3.  The  fact  that  the  officers  of  a  corporation  make  a  con- 
temporaneous minute,  in  writiug,  for  their  own  information, 
of  a  parol  contract,  in  the  absence  of  the  other  party,  does 
not  render  oral  evidence  by  that  party  of  the  terms  of  such 
contract,  incompetent.  Broivn  v.  Washington,  63  1ST.  C.  R. 
514. 

4.  A  description  in  a  deed,  of  the  lands  therein  conveyed, 
as  u  752  acres  of  land,  including  the  land  I  now  live  on,  and 
adjoining  the  same,"  is  too  vague  to  convey  more  than  the 
lands  lived  on;  and,  in  a  case  where  the  grantor  owned  much 
more  than  752  acres  of  land  ''  adjoining,"  cannot  be  aided  by 
parol  evidence  of  what  was  the  specific  land  intended  to  be 
conveyed      Robeson  v.  Lewis,  64  N.  0.  R.  734. 

5.  Where  a  grantor,  (defendant,)  testified  without  objec- 
tion, as  to  what  was  7m  intention  in  using  the  terms  of  des- 
cription applied  to  the  land  in  the  deed,  and  upon  cross- 
examination  denied  that  he  had  ever  said  the  contrary,  and 
the  plaintiff  was  allowed,  after  objection,  to  prove  that  he 
had  previously  said  the  contrary;  held,  that  it  was  error  to 
allow  any  part  of  his  testimony,  even  that  unobjected  to,  to 
go  to  the  jury  ;  what  is  a  muniment  of  title  being  a  matter  of 
law  simply.     Ibid. 

6.  When  a  witness  for  the  plaintiff  spoke  of  a  compro- 
mise, which  was  in  writing,  of  a  lawsuit  between  the  plaintiff 
and  a  third  person,  in  regard  to  certain  cotton  in  controversy, 
it  was  not  erroneous  to  permit  the  witness  without  producing- 


EVIDENCE— IX.  157 

the  written  agreement,  to  state  that  in  the  compromise  the 
•cotton  was  tinned  over  to  the  plaintiff;  the  matter  being 
wholly  collateral  and  between  other  parties,  and  in  which 
defendant  had  no  interest.  Oates,  Williams  A  Co.,  v.  Ken- 
dall, 07  N.  C.  II.  241. 

7.  Parol  evidence  is  admissible  to  explain  a  receipt,  given 
by  an  agent  of  an  Insurance  Company,  for  the  premium  on  a 
policy  of  Insurance  against  loss  or  damage  from  tire.  Fere- 
bee  v.  JV.  C.  Home  Insurance  Co.,  08  N.  0.  R.  31. 

8.  When  the  contents  of  a  writing  come  collaterally  in 
question,  such  writing  need  not  be  produced,  bnt  parol  evi- 
dence to  its  contents  will  be  received.  Pollock  v.  Pollock  et 
<(!.,  08  N.  C  K.  40. 

9  Where  two  notes,  a  part  of  the  consideration  in  the 
purchase  of  a  tract  of  land,  had  been  destroyed  by  the  payer 
after  a  settlement,  in  the  usual  course  of  business:  held,  that 
such  need  not  be  produced  on  a  trial,  impeaching  the  consi- 
deration of  the  deed  for  fraud,  and  that  parol  testimony  of 
their  contents  was  properly  allowed.  Quere,  As  to  the  admis- 
sibility of  the  evidence,  if  the  notes  had  not  been  lost?   Ibid. 

10.  The  contents  of  a  writing,  which  it  it  ever  existed,  has 
been  lost  or  destroyed,  and  which  cannot  be  found  after  dili- 
gent search,  may  be  proved  by  parol.  Smith  &  Melton  v. 
N.  C.  B.  B.  Co.,  08  N.  C.  R.  107. 

11.  To  establish  the  weight  of  19  bales  of  cotton  burned 
on  defendant's  Railroad,  it  is  competent  for  a  witness  to  state 
the  average  weight  of  the  lot  of  33  bales,  of  which  the  burned 
bales  were  a  portion,  and  thus  fix  the  weight  of  the  19  bales 
by  approximation.     Ibid. 

12.  Where  the  suit  is  between  a  member  of  the  firm  and 
a  stranger,  and  the  terms  of  the  partnership  which  are  in 
■Writing  is  not  the  question  at  issue,  but  comes  up  collateral- 
ly, it  is  not  necessary  to  introduce  the  witness.  Brem  v.  Al- 
lison, 08  K  C.  II.  412 

13.  It  is  competent  to  prove  by  parol,  the  consideration 
of  a  written  promise  to  pay  inonev,  at  least  when  none  is  re- 
cited.    Perry  v.  Hill,  08  N.  C.  R.  417. 

14.  When  there  is  an  entire  verbal  agreement,. and  a  note 
given  and  read  in  evidence  was  only  a  part  of  said  agreement, 
it  is  competent  to  prove  such  agreement  by  parol,  notwith- 
standing such  note.     Ibid. 

15.  The  rule  that  when  a  contract  has  been  reduced  to 
writing,  no  evidence  of  its  contents  is  admissible  except  the 
writing  itself,  is  confined  to  contracts,  and  does  not  extend 
to  receipts  on  the  payment  of  money,  unless  they  contain 


158  EVIDENCE— IX.— X. 

something  more,  so  as  to  amount  to  contracts.     Miller  v. 
Dsrr,  69  N.  0.  E.  137. 

See  (Constitution,  45,  65.)  (Emblements  )  (Evidence 
— In  cases  relating  to  Wills  and  Testaments,  7.) 

X.     ADMISSIONS,  DECLARATIONS  AND  ACTS  OF  PARTIES  AND  PRIVIES. 

1.  A.  B.,  a  member  of  a  partnership  for  farming  and  tan- 
ning, purchased  a  mule ;  the  purchase  was  made  by  A.  B. 
alone,  nothing  was  said  of  its  being  for  the  firm,  and  there 
was  no  evidence  that  the  mule  had  ever  been  on  the  joint 
farm,  or  in  the  tannery  of  the  plaintiffs.  An  action  having 
been  brought  in  the  name  of  the  firm  for  deceit,  &c,  in  the 
sale;  upon  a  motion  to  nonsuit:  held,  that  in  the  absence  of 
other  testimony,  there  was  not  only  some,  but  plenary  evi- 
dence of  the  allegation  that  the  mule  was  bought  for  the 
firm  ;  that  the  act  of  issuing  the  writ  in  the  name  of  the 
firm,  raised  the  presumption  that  the  mule  had  been  bought 
for  it.     Little  v.  Hamilton,  Phil.  L.  R.  29. 

2.  Declarations  of  a  bargainor  impeaching  a  conveyance, 
made  after  its  execution,  are  not  admissible  in  evidence. 
Burroughs  v.  Jenkins,  Phil.  Eq.  R.  33. 

3.  Where  an  Agent  of  a  Railroad  Company  was  intro- 
duced in  its  behalf,  to  prove  that  certain  goods  were  not  de- 
livered to  the  Company  as  a  common  carrier,  it  was  compe- 
tent for  this  purpose  to  show  that  it  was  the  custom  ot  the 
Company  to  weigh,  mark  and  book  such  goods;  those  in 
question  not  having  been  so  treated.  Vaughan  v.  R.  U.  Co., 
63  X.  C.  R.  11. 

4.  The  declarations  of  a  grantor  made  previous  to  the 
execution  ot  a  deed,  are  inadmissible  to  control  or  explain 
the  meaning  of  language  used  in  such  deed.  Gaineu  v.  Hays, 
63  N.  C.  R.  497. 

5.  In  an  action  to  recover  possession  of  land,  or  other 
property,  where  both  parties  claimed  under  the  same  person, 
one  under  an  execution  sale,  and  the  other  by  deed  made 
prior  to  said  sale,  it  is  competent,  in  order  to  establish  the 
bona  fides  of  the  deed,  to  prove  declarations  of  the  vendor, 
made  ante  litem  motam  and  before  the  contract  of  sale,  ad- 
mitting an  indebtedness  to  the  vendee.  McCanlessw  Rey- 
nolds, 67  X  C.  R.  268. 

6.  What  an  agent  says  in  the  course  of  doing  an  act  in 
the  scope  of  his  agency,  characterizing  or  qualifying  the  act, 
is  admissible  as  part  of  the  res  gestce.  But  if  his  right  to 
act  in   the  particular  matter  in  question   has  ceased,  his  de- 


EVIDENCE— X.  159 

clarations  are  mere  hearsay,  which  do  not  affect  the  puncipal. 
Smith  &  Melton,  v.  N.  OR.  R.  Co.,  08  N.  0.  K.  107. 

7.  The  power  to  make  declarations  or  admissions  in  be- 
half of  a  company  as  to  events  or  defaults  that  have  occur- 
red and  are  past,  cannot  be  inferred  as  incidental  to  the 
duties  of  a  general  agent  to  superintend  the  current  dealings 
and  business  of  the  company.     Ibid. 

8.  Testimony  as  to  transactions  which  took  place  between 
the  defendant  and  an  agent,  since  deceased,  is  admissible  evi- 
dence in  a  suit  brought  by  the  principal  against  the  defen- 
dant. Especially  so^  if  the  acts  and  agreements  of  the  agent 
were  afterwards  communicated  to  the  principal  and  by  him 
assented  to      Howerton  v.  Lattimer,  03  JS\  0.  R.  370. 

9.  A  plot  and  a  deed  for  a  lot,  corresponding  with  the  one 
in  dispute,  on  the  other  side  of  the  same  square,  being  writ- 
ten admissions  of  the  vendor,  relative  to  the  quantity  of  land 
sold,  is  admissible  in  evidence  in  a  suit  wherein  such  quan- 
tity is  one  of  the  points  to  be  decided  by  the  jury.  Hutch- 
inson, Ex'r  v.  Smith  et  «/,,  08  N.  0.  E.  351. 

10.  The  declarations  and  acts  of  a  third  person  are  not 
evidence  against  a  party,  unless  such  third  person  be  his 
agent;  and  the  agency  must  be  established  before  such  acts 
and  declarations  are  admissible.  Grandy  v.  Ferebee,  08 
N.  0.  R.  350. 

1  L  In  a  suit  on  a  bond,  alleged  to  be  due  the  plaintiff's 
testator,  who  died  in  1803,  which  bond  was  given  in  1858, 
and  was  executed  at  the  request  of  the  testator,  in  renewal 
of  an  older  bond  of  date  some  ten  years  previous,  both  of 
which  bonds,  it  was  claimed  by  defendant,  were  given  as 
vouchers  or  receipts,  for  money  due  her  from  the  estate  of  her 
husband,  of  which  the  plaintiff's  testator  was  executor:  It 
was  held,  that  although  the  defendant  could  not  testify 
directly  as  to  any  conversation  or  understanding  she  had 
with  tlie  plaintiff's  testator  at  the  time  of  the  execution  of 
the  first  bond,  concerning  its  use,  in  was  competent  for  her  to 
relate  that  conversation  in  her  evidence  as  to  what  was  said 
and  what  took  place  between  herself  and  the  agent  of  said 
testator  at  the  time  of  the  execution  of  the  other,  or  second 
bond — the  one  in  suit.  Gilmer  v.  McNuiry,  09  X.  O.  K. 
33."). 

12  Direct  evidence  of  a  conversation  and  understanding 
with  the  plaintiff's  testator  is,  under  sec  343,  Code  of  Civil 
Procedure,  incompetent  ;  a  rehearsal  of  that  conversation, 
however,  in  a  conversation  with  an  agent  of  such  testator  is 
competent,  as  a  part  of  the  res  (jester.     Ibid. 


160  EVIDENCE— X.— XI.— XIL— XIII. 

13.  The  acts  and  declarations  of  a  vendor,  while  in  pos- 
session of  the  property  sold,  are  competent  both  to  prove  the 
fact  of  the  possession  and  control,  and  to  qualify  the  extent 
and  purpose  of  the  possession.  Kirby  .v  Masten,  70  X.  0. 
E.  540. 

See  (Agents  and  Principal — Of  the  liberty  of  the  Principal 
for  the  acts  of  his  Agent,  15,  16,  17.) 

XI.     PUBLIC  DOCUMENTS. 

The  Revenue  Act  of  1809-'70,  ch.  225,  makes,  by  impli- 
cation in  the  34th  section,  the  auditor's  certificates  evidence 
of  the  amount  of  taxes  due  from  the  sheriffs,  but  it  is  only 
prima  facie  evidence,  and  may  be  rebutted.  Jenkins  v. 
Briggs,  65  X.  C.  E.  150. 

XII.  RECORDS  OF  COURT,  AND  RECORDS  AND  BY-LAWS  OF  CORPORATIONS. 

1.  A  record  of  proceedings  under  the  poor  debtor  law,  in 
favor  of  one  not  shown  to  have  been  at  the  time  of  such  pro- 
ceedings in  possession  of  articles  set  apart  to  him,  is  not  ad- 
missible as  evidence  in  a  suit  for  those  articles,  between  third 
persons.      Weaver  v.  Parker,  479. 

2.  The  records  of  a  public  corporation  are  admissible  in 
evidence  generally.  Their  acts  are  of  a  public  character,  and 
the  public  are  bound  by  them.  Weith  &  Arents  v.  City  of 
Wilmington,  68  X.  O.  E.  24 

3.  The  by-laws  of  a  corporation  are  not  evidence  for  or 
against  strangers  who  deal  with  it,  uuless  brought  home  to 
their  knowledge  and  asseuted  to  by  them.  Smith  v.  N.  G. 
E.  R.  Co.,  68  X.  0.  E.  107. 

4.  The  record  of  a  suit  between  A  and  B,  in  which  a 
certaiu  assignment  was  adjudged  valid,  is  no  evidence  of  the 
validity  of  such  assignment  in  a  suit  between  A  and  D,  D 
being  no  party  to  the  former  suit.  Sivepson  v.  Harvey,  60 
X.  O.  E.  387.  " 

5.  An  order,  issued  by  the  Township  Board  of  Trustees, 
appointing  a  person  overseer  of  a  road,  is  proper  evidence 
of  such  appointment,  and  is  admissible.  State  v.  Cauble,  70 
X.  0.  E.  62. 

XIII.    PROOF  OF  OFFICIAL  BONDS. 

1.  The  office  of  the  Clerk  of  the  Superior  Court  of  the 
county  for  which  oue  is  sheriff,  is  the  proper  place  of  deposit 
for  the  bond  of  such  sheriff;  therefore,  a  copy  of  such  bond 


EVIDENCE— XIIL— XIV.  161 

^certified  by  such  clerk,  is  competent  evidence  of  its  contents. 
■State  v.  Lawrence,  04  N.  G.  R.  483. 

2.  Such  a  copy  is  competent  (at  least  under  the  maxim, 
•omnia praesumuntur,  (C-c.,)  even  although  the  certificate  do 
not  state  that  it  has  been  recorded.     Ibid 

See  (Guardian  and  Ward — Suit  on  Guardian  Bonds  5,  6  ) 

XIV.     BOOKS  OF  ENTRIES,  ACCOUNTS,  RECEIPTS,  &c. 

1.  The  rule  that  entries  in  the  books  of  a  firm  are  evi- 
dence against  all  of  the  parties,  is  true  only  of  those  made 
whilst  the  firm  is  doing  business;  therefore,  entries  so  made 
by  a  partner  who  is  winding  up  the  partnership  under  the 
.transfer  to  him  for  that  purpose,  are  not  per  se  evidence  for 
.him  against  a  copartner,   elements  v.  Mitchell,  Phil.  Eq.  R.  3. 

2.  It  is  not  competent  to  introduce  as  evidence  against  a 
third  person,  entries  made  by  a  decedent  containing  accounts 
in  his  own  favor.     Bland  v.  Warren,  65  N.  0.  R.  372. 

3.  It  is  admissible  to  introduce  such  books  under  Rev. 
Code,  chapter  19,  (Bat.  Rev.  ch.  17,  sec.  343a,)  to  the 
amount  ot  sixty  dollars.     Ibid. 

4.  Entries  made  by  merchants'  clerks,  and  other  persons 
-acting  as  agents  and  servants  in  their  usual  course  of  busi- 
ness, who  are  dead,  are  competent  evidence  against  third 
persons.     Ibid. 

5.  Entries  of  ages  of  pupils  as  shown  by  a  common  school 
register,  while  not  admissible  to  prove  the  ages,  is  yet  com- 
petent as  an  independent  circumstance  to  corroborate  the  tes- 
timony of  a  witness  as  to  age.  Falls  v.  Gamble,  (M  X.  C.  R. 
455. 

6  It  is  not  competent  for  a  co-debtor  to  offer  iu  evidence, 
an  entry  in  writing  of  a  payment  of  a  debt,  made  by  another 
co-debtor,  who  died  prior  to  the  institution  of  a  suit,  to 
recover  the  debt,.     Morgan  v.  Hubbard,  6(J  X.  C   R.  304. 

7.  Such  an  entry  is  the  simple  declaration  of  the  debtor 
that  the  claim  was  paid,  which  has  neither  the  solemnity  ot 
an  oath,  nor  the  test  of  a  cross-examination,  whether  objec- 
tionable, also  as  made  iu  the  debtor  interest,  quere.     Ibid. 

8.  A  receipt  for  money  given  by  an  alleged  agent  for  a 
specific  purpose  is  uot  admissible  to  prove  the  tact  of  agency. 
The  agency  being  established  prima  facie  by  other  evidence 
to  the  satisfaction  of  the  court,  such  receipt  becomes  then 
proper  evidence.     (J randy  v.  Ferebee,  68  N.  C.  R,  356. 

9.  If  a  plaintiff  offer  in  evidence  a  receipt  which  he  had 
given  to  tbe  defendant,  and  which  he  had  obtained  from  the 

11 


162  EVIDENCE— XIV.— XV. 

defendant  upon  a  notice  to  him  to  produce  it  on  the  trial,  he 
is  not  hereby  precluded  from  showing  that  the  receipt  had 
the  words  "in  full"  in  it  when  it  was  given,  but  that  they 
had  been  since  obliterated.      Miller  v.  Derr,  09  N.  0.  R- 
137. 

See  (Evidence — Its  relevancy  or  irrelevancy,  8 )  (Evi- 
dence— Parol  evidence  is  when  admissible,  7.) 

XV.     CONFESSIONS. 

1.  Confessions  made  by  a  prisoner,  a  slave,  whilst  wit- 
nessing torture  inflicted  upon  another  prisoner  for  the  same 
offence  in  order  to  extort  confession  from  him,  are  not  com- 
petent evidence.     State  v.  Latvson,  Phil.  L.  R.  47. 

2.  What  amounts  to  such  threats  or  promises  as  render 
confessions  inadmissible  as  being  not  voluntary ;  what  evi- 
dence the  Judge  will  hear  to  establish  the  fact  of  threats  or 
promises  ;  and  whether  there  be  any  evidence  to  show  that 
the  confessions  were  not  voluntary ; — are  questions  of  law, 
and  the  decision  upon  them  is  subject  to  review  in  the 
Supreme  Court.  Whether  the  evidence  if  true  proves  the 
fact  of  threats  or  promises ;  whether  the  witnesses  testifying 
to  the  court  as  to  such  fact  are  worthy  of  credit ;  and  in  case 
of  conflict  which  of  them  is  to  be  believed, — are  questions  of 
fact  for  the  Judge,  and  his  decision  upon  them  is  not  subject 
to  review.     State  v.  Andrew,  Phil.  L  E.  205. 

3.  Where  there  was  some  evidence  that  the  confessions 
of  the  prisoner  were  not  voluntary,  and  in  his  argument  to 
the  jury  his  counsel  for  the  first  time  asked  the  Judge  to 
withdraw  them  :  held,  to  be  the  duty  of  the  Judge  to  decide 
whether  the  objection  to  the  confessions  came  too  late,  and 
whether  the  jury  should  consider  them  as  evidence.     Ibid. 

4.  A  prisoner  in  jail  said  to  a  fellow  prisoner,  ''  If  you 
will  not  tell  on  me  I  will  tell  you  something."  The  other 
replied  that  he  would  not  tell,  but  if  he  did  it  would  make  no 
difference,  for  one  criminal  could  not  testify  against  another. 
The  former  added,  "  I  want  to  know  what  to  do."  The  other 
replied  that  if  he  knew  the  circumstances  he  could  tell  him 
what  to  do:  held,  that  confessions  of  a  murder  made  there- 
upon by  the  former  to  the  latter,  were  admissible  in  evidence. 
State  v.  Mitchell,  Phil.  L.  R.  447. 

5.  Where  one  who  has  been  sworn  as  a  witness  upon  a 
coroner's  inquest  and  denied  all  knowledge  of  the  alleged 
homicide,  within  three  or  four  hours  afterwards,  was  arrested 
as  one  of  the  guilty  parties  and  then  proposed  to  tell  what 


EVIDENCE— XV.  163 

she  knew  about  the  homicide  and  according! y  gave  material 
evidence  against  herself:  held,  that  the  confessions  were 
voluntary,  and  competent  evidence  afterwards  upon  her  trial 
for  murder.     State  v.  Wright,  Phil.  L.  E.  4S6. 

6.  On  a  trial  for  minder,  the  confessions  of  the  prisoner 
having  been  ottered  in  evidence,  their  reception  was  objected 
to  as  having  been  induced  by  fear  or  hope,  but  was  allowed ; 
thereupon  the  prisoner  asked  the  court  to  instruct  the  jury, 
that  "  whether  confessions  are  admissible  at  all  as  evidence, 
as  in  case  of  other  evidence,  is  solely  a  question  for  the  judge, 
but  how  far  they  are  to  be  believed,  or  whether  entitled  to 
credence  at  all,  is  a  question  solely  fur  the  jury :"  His  Honor 
gave  such  instruction,  but  added,  "  But  the  confessions  of 
the  prisoner  come  before  the  jury  untainted  with  fear  or 
hope,  and  are  entitled  to  all  the  weight  to  which  such  evi- 
dence is  entitled ;  and  the  fear  or  hope  which  vitiates  confes- 
sion must  be  such  as  to  produce  an  impression  that  punish- 
ment or  suffering  may  be  lightened  or  avoided  by  confession  :" 
held,  (Rodman  and  Dick,  J  J.,  dissenting,)  that  such  addition 
was  not  objectionable.     State  v.  Nero  Davis,  03  N.  0.  R.  578. 

7.  What  constitutes  fear,  or  hope,  in  case  of  confessions, 
is  a  matter  of  law,  iu  respect  to  which  the  ruling  of  the  Court 
below  may  be  reviewed ;  whether  such  fear  or  hope  existed  iu 
a  particular  ease  is  a  question  of  fact,  the  decision  of  which 
below  cannot  be  reviewed.     Ibid. 

8.  The  confessions  of  a  prisoner  ought  to  be  received  with 
great  caution,  and  unless  they  are  free  and  voluntary,  and 
without  fear  produced  by  threats,  or  inducement  of  temporal 
advantage,  ought  to  be  rejected.  State  v.  Matthews,  00  N- 
C.  R.  100. 

9.  The  examination  of  a  prisoner  as  to  his  own  guilt,  ta- 
ken before  a  committing  magistrate,  is  not  admissible  in  evi- 
dence, as  the  statement  is  made  under  the  constraint  of  an 
oath,  and  therefore,  not  voluntary.  The  objection  to  the  ad- 
missibility of  such  evidence,  is  much  stronger,  if  the  prisoner 
be  under  arrest.     Ibid. 

10.  To  authorize  the  introduction  of  parol  evidence  as  to 
confessions  of  a  prisoner,  taken  before  an  examining  magis- 
trate, it  must  appear  affirmatively  that  there  was  no  examina- 
tion recorded  as  required  by  law.     1  bid. 

11.  Under  the  act  of  18G8-'09,  ch.  178,  (Bat.  Rev.  c.  33, 
s.  22,)  the  prisoner  is  entitled  to  the  benefit  of  counsel,  and, 
before  his  examination  it  is  the  duty  of  the  magistrate  to  in- 
form him  of  the  charge  against  him,  and  "  that  he  is  at  lib- 
erty to  refuse  to  answer  any  question  that  may  be  put  to 


104  EVIDENCE— XV. 

him,  and  that  his  refusal  shall  not  be  used  to  bis  prejudice." 
Such  examinations  are  judicial  confessions,  and  the  policy  of 
the  law  requires  them  to  be  taken  under  the  protecting  cau- 
tion and  oversight  of  the  judicial  officer — this  caution  is  an 
essential  part  of  the  proceedings  and  must  be  given  to  a  pri- 
soner under  arrest,  to  render  his  examination,  admissible  in 
evidence.     Ibid. 

12.  The  reasons  of  the  statute  extends  to  an  inquisition 
by  a  coroner.  In  this  respect,  he  is  an  examining  magis- 
trate.    Ibid. 

13.  When  a  prisoner  is  brought  before  a  coroner  while  he 
is  holding  an  inquisition,  and  after  witnesses  had  been  exam- 
ined, a  post  mortem  examination  made,  and  a  verdict  entered 
up,  iu  answer  to  a  question  asked  by  the  foreman  of  the  jury 
''  confessed,"  held,  that  although  after  the  first  question  was 
put,  the  prisoner  was  cautioned  by  the  coroner  not  to  answer, 
the  caution  came  too  late  to  afford  the  protection  which  the 
law  requires,  and  the  question  was  inadmissible.     Ibid. 

14.  When  a  pbysician  was  examined  as  a  witness,  and 
stated  that  he  had  examined  the  prisoner,  and  was  of  opinion 
that  she  had  been  delivered  of  a  child  within  three  or  four 
days,  and  it  was  proposed  to  ask  him  "  whether,  from  his 
experience  and  knowledg  of  females,  in  three  or  four  days 
after  the  delivery  of  a  child,  and  under  the  circumstances 
detailed  by  the  evidence,  the  prisoner  was  in  a  frame  of  mind 
to  give  an  intelligent  answer,  or  know  what  she  was  talking 
about  ?"  held,  that  the  question  was  proper,  and  should  have 
been  allowed.     Ibid. 

15.  The  rule  of  law  in  criminal  cases,  requiring  proof 
beyond  a  reasonable  doubt,  does  not  require  the  State,  even 
in  a  case  of  circumstantial  testimony,  to  prove  such  a  coinci- 
dence of  circumstances  as  excludes  every  hypothesis  except 
the  guilt  of  the  prisoner.  The  true  rule  is,  that  the  circum- 
stances and  evidence  must  be  such  as  to  produce  a  moral  cer- 
tainty of  guilt,  and  to  exclude  auy  other  reasonable  hypoth- 
esis.    Ibid. 

10.  The  admissions  of  guilt  of  one  who  had,  prior  to 
making  such  admission,  been  induced  by  fear  or  the  hope  of 
benefit,  to  confess  himself  guilty  of  a  criminal  charge,  cannot 
be  used  against  him,  unless  it  be  shown  by  the  most  irrefrag- 
ible  evidence,  that  the  motives  which  induced  the  first  con- 
fession had  ceased  to  operate.  State  v.  Lowliorne,  00  IS7.  0. 
R.  038. 

17.  Hence,  when  a  party  had  been  persuaded  to  make  a 
confession  of  guilt,  through  a  promise  of  immunity  from  pros- 


EVIDENCE— XV.— XVI.  165 

ecution  therefor:  held,  that  in  the  absence  of  clear  proof 
that  such  inducement  had  ceased  to  operate,  his  confessions 
touching  the  same  offence  thereafter  made,  were  inadmissible. 
Ibid. 

18.  A  defendant  in  custody  and  charged  with  larceny, 
upon  his  examination  before  a  Justice  of  the  Peace,  being 
cautioned  that  "he  was  not  obliged  to  answer  any  question 
for  or  against  himself,"  confesses  his  participation  in  the  lar- 
ceny; such  confession  is  admissible  evidence  ou  his  trial 
before  the  court.     State  v  Patterson,  08  X.  G.  R  292. 

19.  On  the  trial  of  the  mother  for  the  murder  of  her  in- 
faut  child,  it  is  error  in  the  Court  below  to  permit  a  witness 
to  relate  a  statement  made  by  the  mother  of  the  prisoner  and 
in  her  presence,  that  the  prisoner  "  had  a  child  this  way  before, 
and  put  it  away,"  to  which  the  prisoner  made  no  reply,  and 
the  reception  of  such  evidence  entitles  the  prisoner  to  a  new 
trial.     State  v.  Shuford,  69  X.  C.  R.  486. 

20.  The  prosecutor,  a  white  man,  the  employer  of  the  de- 
fendant, a  colored  man,  goes  to  the  field  where  the  defendant 
is  at  work,  with  two  other  white  men,  and  tells  him  that  he 
has  lost  a  hog,  at  the  same  time  saying,  "  I  believe  you  are 
guilty— if  you  are,  you  had  better  say  so ;  if  you  are  not,  you 
had  better  say  that,"  and  the  defendant  confesses  his  guilt: 
held,  that  the  confession  was  made  under  the  influence  of 
hope  or  fear,  or  both,  and  under  the  circumstances  was  inad- 
missible.    State  v.  Whitfield,  70  X.  C  R.  35G. 

XVI.     DYING  DECLARATIONS. 

1.  Dying  declarations  are  admissible  only  as  to  those 
things  of  which  the  declarant  would  have  been  competent  to 
testify  if  sworn  in  the  case ;  and  if  there  be  not  the  state- 
ment of  a  fact,  but  merely  the  expression  of  the  opinion  of 
the  deceased,  they  are  inadmissible.  State  v.  Williams,  67 
X.  C.  R.  12.  ' 

2.  Therefore,  where  the  deceased,  who  was  shot  at  night 
in  a  house  from  the  outside  through  an  aperture  iu  the  logs, 
declared,  while  in  extremis,  "It  was  E.  W.  who  shot  me, 
though  I  did  not  see  him :"  held,  that  the  declaration  was 
inadmissible.     Ibid. 

3.  The  decision  of  a  Judge  as  to  the  admissibility  of  the 
declarations  of  a  deceased  person,  made  just  before  his  death, 
comprises  a  decision  both  of  fact  and  of  law.  Of  fact,  as  to 
what  were  the  declarations,  and  as  to  the  circumstances 
under  which   they  were   made.     Of  lair,  as  to  whether  the 


166  EVIDENCE— XVII. 

declarations  were  admissible  alone  or  in  connection  with  the 
circumstances.  On  the  former,  the  2  udge's  decision  is  fiual. 
On  the  latter,  it  is  subject  to  review.     Ibid. 

XVII.     JN  CRIMINAL  PROCEEDINGS  AND  INDICTMENTS. 

1.  In  order  to  confirm  the  evidence  of  a  witness,  it  is  com- 
petent to  ask  whether  it  does  not  concur  with  statements 
previously  made  by  the  witness,  out  of  court  State  v.  Mar- 
shall, Phil.  L.  E.  49. 

2.  The  husband  of  one  charged  as  an  accessory  is  not  a 
competent  witness  in  favor  of  one  charged  as  the  principal 
felon.     State  v.  Ludwiek,  Phil .  L.  R.  401. 

3.  Where  two  or  mure  persons  are  on  trial  under  one  in- 
dictment for  the  same  offence,  they  are,  by  the  act  of  1866, 
ch.  43,  competent  and  compellable  to  give  evidence  for  or 
against  each  other,  though  one  of  them  cannot  be  a  witness 
for  or  against  himself,  or  against  his  wife,  (and  e  converso), 
and  is  not  compellable  to  answer  any  question  tending  to  cri- 
minate himself.     State  v.  Rose,  Phil.  L  R.  406. 

4.  A  freed  woman  is  a  competent  witness  against  a  freed 
man  who  claimed  her  as  his  wite  while  they  were  slaves,  but 
since  their  emancipation  has  refused  to  marry  her.  State  v. 
Taylor,  Phil.  L.  E.  .508. 

5.  To  the  rule  requiring  testimony  to  be  subjected  to  the 
tests  of  "ap  oath"  and  "cross  examination,"  there  are  excep- 
tions arising  from  necessity.  One  of  these  consists  of  decla- 
rations which  are  part  of  the  res  gestae.  State  v.  Dula,  Phil. 
L.  R.  211. 

6.  This  exception  embraces  only  such  declarations  as  give 
character  to  an  act,  therefore,  when  the  deceased  was  met  a 
tew  miles  from  the  place  where  she  was  murdered,  going  in 
the  direction  of  that  place:  held,  that  the  declarations  in  a 
conversation  with  the  witness,  as  to  where  the  prisoner  was, 
and  that  she  expected  to  meet  him  at  the  place  whither  she 
was  going,  were  not  admissible  against  him      Ibid. 

7.  "  What  facts  amount  to  an  agreement  to  commit  a  crime 
by  the  prisoner  and  one  charged  as  accessory,  so  as  to  render 
competent  the  acts  aud  declarations  of  the  alleged  accessory, 
is  a  question  of  law,  and  the  decision  of  the  court  below  upon 
it  is  subject  to  review  in  the  Supreme  Court.     Ibid. 

8.  So,  whether  there  is  any  evidence  of  a  common  design ; 
but,  whether  the  evidence  proves  the  fact  of  common  design, 
whether  the  witnesses  are  worthy  of  credit,  and  in  case  of 
conflict,  what  witnesses  should  be  believed  by  the  Judge,  are 


EVIDENCE— XVII.  1G7 

questions  of  fact  for  him  to  decide,  and  are  not  liable  to  re- 
view.    Ibid. 

9.  What  was  said  by  a  third  person  iu  the  presence  and 
the  hearing  of  the  prisoner  ma}7  be  given  in  evidence  against 
him.     State  v.  Ludwick,  Phil.  L.  E.  401. 

10  Where  there  is  any  evidence  of  an  agreement  between 
two  or  more  to  compass  the  death  of  a  third  person,  the  de- 
cision of  the  court  below  that  such  evidence  is  sufficient  to 
establish  the  agreement,  (preliminary  to  the  admission  of  the 
acts,  &c,  of  one  of  such  persons  as  evidence  against  the 
other,)  cannot  be  reviewed  in  the  Supreme  Court.  State  v. 
Dula,  Phil.  L.  R.  437. 

11.  Although  in  investigating  the  preliminary  question 
as  to  the  agreement  evidence  of  the  naked  declarations  of 
■one  of  the  parties  is  not  competent :  yet  if  such  declarations 
make  part  of  the  act  charged  in  the  indictment  it  is  other- 
wise.    Ibid. 

12.  In  order  to  support  an  exception  for  the  exclusion  of 
certain  testimony,  such  testimony  must  appear  to  have  been 
relevant.     Ibid. 

13.  What  one  says  in  via  as  to  the  place  to  which  he  is 
going,  is  competent  evidence  to  establish  the  truth  of  what 
he  says.     Ibid. 

14.  Evidence  that  a  prisoner  after  being  committed  to 
jail  had  opportunity  to  escape  and  did  not  avail  himself  of  it, 
is  not  admissible.     State  v.  Taylor,  Phil  L.  P.  508. 

15.  The  examination  of  a  witness  taken  before  a  jury  of 
inquest  or  an  examining  magistrate,  is  inadmissible  as  evi- 
dence in  chief,  unless  it  be  shown  that  the  witness  is  dead. 
Ibid. 

16.  In  a  case  of  murder,  the  deceased  being  a  merchant, 
and  the  evidence  against  the  prisoner  being  circumstantial, 
an  account  book  showing  entries  by  the  deceased  just  before 
the  murder,  was  held  admissible  as  evidence  tendiug  to  con- 
nect the  prisoner  with  the  transaction.     Ibid. 

17.  The  prisonor  has  a  right,  with  a  view  of  impeaching 
her  credibility,  to  ask  the  prosecutrix  when  introduced  as  a 
witness  in  a  case  of  alleged  rape,  if  she  had  not  been  deliv- 
ered of  a  bastard  child.     State  v.  Murray,  03  N.  C  R-  31. 

18.  The  error  in  excluding  such  question  is  not  cured  by 
permitting  the  prisoner  to  show  afterwards,  by  various  wit- 
nesses, that  the  prosecutrix  had  been  delivered  of  such  child, 
and  that  her  character  for  chastity   is  bad.     Ibid. 

19.  Errors  committed  by  the  court  during  the  trial  can  be 
remedied  only  by  a  venire  de  novo.     Ibid, 


1 68  EVIDENCE— XVII. 

20.  An  objection  by  the  State  to  a  question  asked  of  a 
witness  being  sustained  by  the  court  but  immediately  after- 
wards withdrawn,  so  that  the  prisoner  might  have  asked  it: 
held,  no  ground  for  a  new  trial,  especially  where  the  question 
was  asked  and  answered  by  another  witness.  State  v.  Mc- 
Curry,  63  N.C.E.33, 

21.  There  benig  no  evidence  of  a  mutual  combat  between 
the  prisoner  and  the  deceased,  it  was  proper  for  the  court  to 
refuse  to  charge  the  jury  upon  the  supposition  that  there  was 
such  evidence.     Ibid. 

22.  It  being  a  question  whether  a  severe  injury,  supposed 
to  be  a  burn,  was  received  by  the  deceased  before  death,  it 
was  competent  for  the  prisoner  to  show  that  the  deceased 
said  he  had  a  large  burn  upon  his  abdomen  ;  such  declarations 
being  admissible  as  natural  evidence.  State  v.  Harris,  63 
K  0.  E.  1. 

23.  It  is  not  necessary,  in  North  Carolina,  to  show  emis- 
sion in  order  to  prove  rape,  even  where  the  indictment  con- 
cludes against  the  form  of  the  "  Statute" — not  "  Statutes :" 
the  20th  sec.  of  Eev.  Code,  chap.  35,  having  abolished  all  dis- 
tinction between  these  phrases.  State  v.  Storlcey,  63  N.C  E.  7. 

24.  A  witness  for  the  State  (here  an  accomplice)  having 
been  asked  upon  the  examination  in  chief,  whether  he  had 
not  upon  some  other  occasion  given  a  different  statement  of 
the  transaction,  may  thereupon,  at  the  instance  of  the  Solic- 
itor, be  permitted  to  explain  why  he  gave  such  statement. 
State  v.  Pulley,  63  K  C.  E.  8. 

25.  Answers  given  by  a  witness  to  such  collateral  ques- 
tions as  are  put  with  the  purpose  of  showing  his  temper,  dis- 
position or  conduct,  are  not  conclusive,  but  may  be  contra- 
dicted by  the  interrogator.  State  v.  Kirkman,  63  IS".  C  E. 
246. 

26.  One  who  calls  out  a  statement  from  a  witness,  which 
he  subsequently  impeaches  by  another,  cannot  object  to  tes- 
timony from  the  other  side  in  support  of  such  witness,  on  the*- 
ground  that  the  statement  so  called  out  by  himsell  was  col- 
lateral matter.     Ibid. 

27.  A  mule  had  been  stolen  from  the  residence  of  its 
owner  upon  Saturday  night,  and  upon  the  next  night,  again 
from  the  residence  of  A  B :  held,  that  the  fact  that  upon 
Sunday  morning  the  prisoner  had  carried  the  mule — which 
from  appearances  then  had  been  tied  out  during  part  of  the- 
preceding  night,  to  the  house  of  A  B :  even  when  taken  in 
connection  with  the  additional  fact  that  he  assisted  in  steal- 
ing it  upon  Sunday  night,  although  it  might  raise  a  conjee- 


? 


EVIDENCE— XVII.  169 

ture,  "was  no  evidence  that  be  had  stolen  it  on  the  night  before. 
State  v.  Vinson,  63  N.  0.  R.  335. 

28.  It  is  within  the  discretion  of  the  Judge  presiding  at 
a  trial  to  admit  or  exclude  evidence  which,  at  the  stage  of 
the  case  when  it  is  tendered,  is  irrelevant,  even  although  the 
counsel  tendering  it  promises  to  connect  it  with  the  case  by 
subsequent  testimony  ;  therefore,  no  appeal  to  this  court  lies 
from  a  ruling  winch  excludes  such  evidence.  State  v.  Cherry, 
63  NT.  0.  R.  493. 

29.  The  rule,  falsum  in  unofalsum  in  omnibus"  is  not  a 
rule  of  law  in  this  State  ;  and  the  jury  may  believe  all,  or  a 
part,  or  none,  of  the  testimouy  of  a  witness  to  whose  evidence 
that  rule  is  applicable,  as  they  think  best.  State  v.  Brantley, 
63  N.  0.  R.  518. 

30.  An  omission  of  the  word  'county"  before  the  words 
"of  Wake  "  is  immaterial  in  the  record  of  the  trial  below,  as 
the  court  is  bound  to  know  what  are  the  counties  of  the 
State.     Ibid. 

31.  Evidence  having  been  given  that  a  person  then  upon 
trial  for  larceny,  had  been  charged  with  the  crime  by  the 
prosecutor,  face  to  face,  on  being  arrested  under  a  Slate's 
warrant :  it  is  competent  for  the  defendant  to  show  what  his 
reply  was  to  such  accusation.  State  v.  Patterson,  63  N.  0.  R. 
510. 

32.  There  being  evidence  that  the  deceased  came  to  his 
death  by  the  infliction  of  whippings  by  the  prisoner,  whilst 
the  latter  insisted  that  the  death  was  caused  by  a  burn  of 
which  there  was  an  appearance  on  the  abdomen,  the  testi- 
mony of  a  physician  that  in  his  opinion  the  burn  was  inflicted 
after  death,  was  admissible  in  support  of  other  evidence  for 
the  prosecution.     State  v.  Harris,  63  N.  C.  R.  1. 

33.  Although  the  law  allows  to  a  person  in  loco  parentis 
the  broadest  latitude  in  governing,  it  is  not  necessary  to  prove 
express  malice  on  bis  part  in  order  to  convict  of  murder,  if 
the  facts  show  such  cruelty  and  inhumanity  in  whippiug,  as 
exclude  the  idea  of  passion.     Ibid. 

34.  The  evidence  being  closed  on  both  sides,  upon  the 
defendant  being  permitted  to  recall  a  witness  to  explain  a 
part  of  his  testimony,  it  is  within  the  discretion  ot  the  judge 
to  forbid  the  examination  of  the  witness  as  to  new  matter. 
Ibid. 

35.  In  all  criminal  prosecutions  every  man  has  a  right  to 
confront  the  accusers  and  witnesses  with  other  witnesses ; 
Therefore,  entries  in  the  course  of  business,  upon  the  books 
of  a  Railroad  Company,  by  one,  at  the  time  an  agent  of  the 


170  EVIDENCE— XVII. 

company,  and  still  living,  but  absent  from  the  State,  are  not 
competent  evidence  of  the  tacts  therein  set  forth,  upon  the 
trial  of  a  third  person  for  crime.  State  v.  Thomas,  04  X.  0. 
R.  74. 

30.  Where  two  are  indicted  for  a  battery,  the  one  for  the 
act,  and  the  other  for  using  encouraging  language  at  the 
time,  the  wife  of  the  one  who  encouraged  the  beating  is  a 
competent  witness  for  the  other  party :  The  legal  effect  an 
acquittal  of  the  other,  is  not  an  acquittal  of  her  husband. 
State  v.  Mooney,  G4  N.  0.  R.  54. 

37.  What  a  man  says  when  charged  with  a  crime,  is 
competent  evidence  for  him ;  therefore,  what  was  said  by  a 
man  charged  with  having  stolen  goods  in  his  possession,  who 
thereupon  showed  them,  is  competent.  State  v.  Worthington, 
C4  JS\  C.  R.  594. 

38.  It  was  also  competent  as  part  of  a  conversation,  the 
first  part  of  which  had  necessarily  been  given  in  evidence  by 
the  State.     Ibid. 

39.  In  such  cases,  the  record  ought  to  show  what  it  was 
that  the  defendant  said, — so  as  to  show  its  importance,  and 
that  its  rejection  prejudiced  him;  it  ought  also  to  present 
what  had  been  said  by  the  person  who  charged  that  he  had 
stolen  goods  in  his  possession.     1  bid. 

40.  A  person  may  be  convicted  of  larceny  upon  evidence 
connecting  him  with  the  theft,  though  the  articles  stolen  may 
not  be  identified,  or  even  found.  State  v.  Kent,  05  N".  0.  R. 
311. 

41.  A  person  indicted  in  the  same  bill  as  an  accessory 
with  the  prisoner  in  the  murder,  although  not  on  trial  with 
him,  is  an  incompetent  witness.  Stale  v.  Diuilap,  05  N.  0. 
R.  288. 

42.  What  the  bystanders  may  say  immediately  after  a 
homicide  has  been  committed  is  not  competent  evidence. 
Ibid. 

43.  Where,  upon  a  trial  for  minder,  there  was  a  question 
whether  the  prisoner  was  in  the  military  serviee  of  the  Uni- 
ted States  on  or  before  the  17th  day  of  August,  1805  in 
order  to  ascertain  whether  he  was  entitled  to  the  benefit  of  the 
act  of ''Amnesty  and  Pardon,'' ratified  the  22d  December, 
1860,  aud  a  witness  testifying  five  years  after  the  transaction, 
said  that  the  homicide  was  commitied  "  about  the  last  of 
August,  1805,"  it  was  held,  that  there  was  some  evidence, 
which  ought  to  have  been  submitted  to  the  jury,  tending  to 
show  that  the  homicide  was  committed  on  or  before  the  17th 
day  of  August,  1865,  and  that  it  was  error  for  the  court  to 


EVIDENCE— XVII.  171 

instruct  the  jury  that  there  was  do  evidence  of  that  fact. 
State  v.  Shelton,  05  N.  0.  E.  294. 

44.  Where  two  persons  are  jointly  indicted,  and  one  of 
the  parties  submits  and  judgment  is  suspended,  he  is  still  a 
defendant  within  tlie  meaning  of  the  act  of  1870-'71,  and  is 
therefore  incompetent  to  testify  for  or  against  his  co-defend- 
ant.    State  v.  Bruner,  05  X.  0.  E.  499. 

45.  Where  two  are  jointly  indicted  for  a  forcible  trespass, 
and  one  of  the  defendants  submits,  upon  whom  no  judgment 
is  pronounced,  it  is  incompetent  to  introduce  the  record  of  his 
submission  in  a  trial  against  his  co-defendant,  as  evidence 
confirmatory  of  the  testimony  of  the  prosecutrix.  State  v. 
Queen,  05  X.  0.  K.  464. 

40,  It  is  not  competent  on  the  cross-examination  of  a  wit- 
ness to  ask  him  if  he  made  the  same  statement  before  the 
grand  jury  as  he  now  makes,  when  the  counsel  state  that 
their  object  in  asking  such  question  is  not  to  impeach  the 
credibility  of  the  witness.  State  v.  Parker  dfc  Gilmer,  05  X. 
C.  E.  455 

.  47.  Where  a  witness,  in  case  of  homicide,  stated  to  anoth- 
er person  that  she  had  received  several  severe  wounds,  and 
believed  she  would  die,  and  desired  a  neighbor  to  be  sent  for; 
that  she  wanted  to  "  tell  all  about  it,  and  who  did  it" :  held, 
that  such  statements  were  competent  as  confirmatory  testi- 
mony, and  the  fact  that  the  witness  said  she  would  die,  would 
furnish  no  ground  for  their  exclusion.  State  v.  Adair,  00  N. 
0.  E.  298. 

48.  It  is  cempetent  for  a  magistrate  to  state  what  a  wit- 
ness swore  before  him  in  regard  to  the  homicide,  although  he 
afterwards  committed  the  statement  to  writing.  Such  state- 
ment could  only  be  referred  to,  to  refresh  his  memory,  and 
was  properly  treated  as  a  memorandum.     Ibid. 

49.  Where  one  of  the  prisoners  in  this  case  was  present 
and  heard  a  conversation  between  the  magistrate  and  his 
(prisoner's)  father,  and  saw  the  confusion  of  the  father  when 
a  certain  statement  was  made  in  regard  to  the  principal 
State's  witness :  held,  that  this  fact  was  admissible  as  con- 
firmatory testimony.     Ibid. 

50.  Upon  the  trial  of  an  indictment  for  "  unlawfully  and 
wilfully  demolishing  "  a  public  school-house,  under  chap.  24, 
sec.  103,  Rev.  Code,  the  record  of  a  petition  in  equity  of  sev- 
eral persons  who  therein  claimed  title  to  the  locus  in  quo, 
setting  forth  their  title  thereto  as  tenants  in  common,  the  or- 
der for  partition,  the  report  of  the  commissioners,  and  a  final 
decree,  confirming  that  report,  among  whom  was  a  party  un- 


172  EVIDENCE— XVII. 

der  whom  the  defendants  claimed,  there  being  evidence  of  de- 
fendant's possession,  even  if  not  sufficient  evidence  of  title,  is 
certainly  admissible  as  evidence,  tending  to  explain  the  pos- 
session of  the  defendants  and  their  bona  fides.  State  v.  Rose- 
man,  66  N.  0.  E.  634 

51.  Upon  a  criminal  trial,  it  is  proper  to  ask  a  witness  to 
look  around  the  Court  room  and  point  out  the  person  who 
committed  the  offence.  State  v.  Thos.  Johnson,  67  N.  0.  R.  55.. 

52.  ■  Evidence  of  the  name  of  a  prisoner  as  given  by  him 
when  brought  before  the  examining  magistrate  is  admissible, 
though  it  do  not  appear  whether  the  examination  was  re- 
duced to  writing.     Ibid. 

53.  On  a  trial  for  murder,  a  witness  for  the  State  has  a 
right  to  relate  to  the  jury  the  whole  of  a  conversation  which 
took  place  between  the  witness  and  the  accused  on  the  day  af- 
ter the  alleged  homicide;  although  in  that  conversation  the  wit- 
ness, in  answer  to  questions  asked  by  the  accused,  expressed 
the  belief,  giving  the  reason  for  such  belief,  that  the  prisoner 
committed  the  homicide.     State  v.  Williams,  68  N.  C.  R,  60. 

54.  On  cross-examination,  a  witness  on  a  trial  for  murder, 
stated  that  she  "did  not  tell  Mrs.  L.  on  the  day  of  the  homi- 
cide, that  the  deceased  was  sitting  up,  and  she  did  not  think 
he  was  hurt  as  bad  as  he  pretended  to  be":  held,  that  the 
State  calling  out  this  evidence  was  bound  by  it,  and  could 
not  call  Mrs.  L.  to  contradict  the  statement.  State  v.  El- 
liott, 68  N.  C.  R.  125. 

55.  With  certain  exceptions,  neither  the  acts  nor  the  de- 
clarations of  persons  not  on  oath  and  subject  to  cross-exam- 
ination, are  admissible  for  or  against  a  defendant.  There- 
fore, in  an  indictment  against  A  for  larceny,  the  admissions 
and  acts  of  B  tending  to  prove  that  he,  B,  was  the  guilty 
party,  are  not  competent  evidence  on  the  trial  of  A.  State 
v.  White,  68  ff  O  R.  158. 

56.  On  a  trial  of  a  defendant  for  receiving  a  stolen  horse, 
it  was  in  evidence,  that  one  R  was  found  with  the  horse  at 
the  barn-yard  of  the  prosecutor  by  his,  the  prosecutor's  son, 
and  that  R  offered  to  give  the  son  $75  for  the  horse,  know- 
ing that  it  did  not  belong  to  the  sou,  but  the  father,  and  that 
in  company  with  the  son  he  carried  the  horse  off,  promising 
to  pay  the  $75  at  a  future  time:  held,  to  be  some  evidence 
that  R  did  not  take  the  horse  animo  furandi,  and  it  was  er- 
ror for  his  Honor,  on  the  trial  below,  to  charge  that  accord- 
ing to  such  evidence  R  was  guilty  of  larceny.  State  v.  Shoaf, 
68  N.  C.  R.  375. 

See  (Assault  and  Battery,  23.)  (Evidence — Confessions, 
15,  19.) 


EVIDENCE— XVIII.  173 

XVHL    IN  CASES  RELATING  TO  WILLS  AND  TESTAMENTS. 

1.  To  support  an  allegation  of  partial  insanity,  evidence 
of  strangeness  of  conduct  towards  a  particular  person  bad 
been  introduced  by  the  caveators :  held,  to  be  competent  for 
tbe  propounders  to  show  similar  conduct  towards  other  per- 
sons.    Wood  v.  Sawyer,  Phil.  L.  E.  251. 

2  The  contents  of  a  paper  written  by  dictation  of  the 
testator  about  two  years  after  he  had  executed  his  will, 
rssigning  reasons  for  the  particular  dispositions  of  such  will  : 
held,  to  be  competent  upon  the  question  of  the  testator's 
capacity.     Ibid. 

3.  In  support  of  an  expert's  opinion  upon  a  question  of 
insanity,  it  is  not  competent  for  him  to  repeat  an  account 
which  he  had  received  from  a  monomaniac  as  to  the  develop- 
ment of  his  own  disease  ;  or  another  account  related  to  him 
by  an  unprofessional  nurse  of  another  insane  person.     Ibid. 

4.  The  testator  having  in  his  lifetime  referred  to  a  certain 
book  as  having  been  printed  at  his  own  expense  and  as  giv- 
ing a  correct  account  of  his  family,  a  genealogical  table  therein 
is  competent  evidence  of  the  state  of  his  family  at  his  death. 
Ibid. 

5  The  course  and  practice  of  the  court  as  to  the  order  in 
which  testimony  is  to  be  introduced  is  well  settled,  and  ought 
not  to  be  violated  except  in  cases  of  surprise  or  mistake  as 
to  matters  seriously  affecting  the  merits  of  a  cause.     Ibid. 

6.  Proof  of  the  transaction  of  ordinary  business  not  con- 
nected with  the  matter  in  regard  to  which  delusion  exists  is 
some  evidence  to  rebut  a  presumption  raised  by  proof  that 
such  delusion  existed  a  short  while  before;  whether  sufficient 
or  not,  is  a  matter  solely  for  the  jury.     Ibid. 

7.  The  rule,  latent  ambiguities  in  wills  may  be  explained 
by  parol  evidence,  approved  of  and  applied.  ("Liuebarger 
Plantation.")     Kincaid  v.  Lowe,  Phil.  E.  R.  41. 

8.  If  on  the  trial  of  the  issue  of  devastavit  vel  non,  the 
will  is  attacked  on  the  ground  of  undue  influence  and  false 
representations  whereby  the  testatrix,  as  declared  in  the 
paper  writing  propounded,  was  induced  to  believe  that  all  of 
her  relatives  had  joined  in  proceedings  to  declare  her  a 
lunatic,  it  is  competent  for  the  caveators  to  introduce  the 
record  of  such  proceedings  to  show  that  only  a  portion  of  the 
next  of  kin  had  instituted  them.  Lawrence  v.  Steel,  66 
N.  0.  It.  584. 

9.  One  of  the  subscribing  witnesses  to  a  will  being  asked 
on  his  cross-examination,  if  he  had  not  a  short  time  before 


174  EVIDENCE— XIX— XX— XXI. 

the  execution  of  the  will,  expressed  to  the  other  subscribing 
witness  doubts  of  the  capacity  of  the  testatrix  to  make  a  will, 
and  on  that  account  hesitated  to  sigu  the  will  as  a  witness, 
and  having  denied  using  any  such  expressions :  held,  that 
evidence  contradicting  the  witness  in  regard  to  such  conver- 
sation, was  admissible,  not  on  the  ground  of  its  tending  to 
prove  capacity  or  incapacity  in  the  testatrix,  but  for  the  pur- 
pose of  discrediting  the  witness,  by  showing  that  he  had 
made  different  statements  to  his  evidence  on  the  trial,  upon 
a  matter  pertinent  to  the  issue.  Keerans  v.  Brown,  08  X. 
C.  K.  43. 

XIX.    WHEN  EVIDENCE  IS,  OR  IS  NOT  REQUIRED. 

1  Xo  evidence  is  required  of  facts  admitted  in  a  cuse. 
Keeler  v.  Newbern,  Phil.  L.  K.  505. 

2.  Where  a  party  has  it  in  his  power  to  establish  the 
truth  of  any  disputed  fact,  it  is  his  dutv  to  do  so.  Covington 
v,  Wall,  05  X.  0.  li.  594. 

XX.     ON  WHOM  IS  PLACED  THE  BURDEN  OF  PROOF. 

1.  In  actions  for  damages,  a  party  alleging  negligence 
cannot  shift  the  burden  of  proof  on  the  other  side,  until  he 
has  proved  facts,  at  least,  more  consistent  with  negligence 
than  with  care.     Jones  v.  N.  C.  R.  Co.,  67  X.  0.  E.  122. 

2.  Therefore,  where  a  Railroad  Company  is  sued  for  dam- 
ages by  its  train  to  a  horse  over  six  mouths  from  the  time  of 
the  injury,  not  only  is  the  burden  of  proving  negligence  on 
the  plaintiff,  but  he  must  show  facts  inconsistent  with  the 
probability  of  care ;  e.  g ,  that  the  whistle  was  not  blown. 
Ibid. 

XXI.     WHEN  THE  JURY  IS  TO  DECIDE  UPON  THE  EFFECT. 

1.  Where  a  lost  letter  was  one  of  many  that  had  passed 
between  a  principal  and  his  agent  in  reference  to  a  matter  of 
business,  and  its  contents  were  not  precisely  admitted :  held, 
to  be  error  for  the  court  to  take  upon  itself  to  state  its  effect 
upon  the  relation  between  the  parties  to  the  correspondence; 
and  that  in  such  case  the  court  with  proper  observations  on 
the  law  of  agency,  revocation,  &c,  should  submit  the  ques- 
tion of  effect,  &c,  to  the  decision  of  the  jury.  Sneed  v.  Smith, 
Phil.  L.  R.  595. 

2.  Upon  a  question  whether  a  party,  demanding  of  the 
lessor  to  be  put  into  possession  of  premises  that  had  been  let 


EVIDENCE— XXIL— XIII.— EXCHANGE,  &o.    175 


to  him,  was  ready  and  able  to  pay  a  quarter's  rent  in  ad- 
vance: hdd,  that  the  evidence  of  such  party,  that  he  was 
ready  to  pay  if  lie  had  been  put  into  possession  ;  and,  that 
he  did  not  hear  an  alleged  demand  of  such  rent  by  the  lessor 
as  a  condition  of  putting  him  into  possession,  for  if  he  had, 
he  would  have  paid  it, — was  some  evidence  of  such  readiness 
and  ability,  and  as  such  was  to  be  left  to  the  jury.  Cronhj 
v.  Murphy,  64  N.  C.  R.  489 

3.  The  identification  of  a  lot  of  land  described  on  the  plan 
of  a  town  only  as  lot  No  115,  and  not  otherwise  described 
in  the  deed,  is  a  question  of  fact  for  a  jury.  Bryan  v.  Fan- 
cett,  tio  X.  C.  K.  650. 

XXII.     WHO  TO  DECIDE  UPON  ITS  COMPETENCY. 

"Whether  or  not  there  was  a  spoliation  of  a  deposition  of- 
fered in  evidence,  is  a  question  for  the  Court,  to  be  decided 
upon  inspection,  and  it  is  error  to  submit  the  same  to  the 
decision  of  the  jury.     StWi  v.  LoofaiMU,  08  X.  C.  E.  227. 

XXIII.     GROUND  OF  OBJECTION  TO  EVIDENCE  TO  BE  STATED, 

A  party  objecting  to  the  introduction  of  evidence  must 
state  with  certainty  the  points  excepted  to;  and,  if  the  ground 
stated  for  such  objection  be  untenable,  it  is  error  to  reject 
the  evidence,  though  inadmissible  if  properly  objected  to. 
Bridgets  v.  Bridgers,  69  N.  C.  E.  45  L. 


EXCHANGE  OF  RAILWAY   BONDS. 

1  The  legal  effect  of  the  exchange  of  bonds  of  the  State 
and  the  VV.  C.  &  R.  E.  R.  Co.,  and  of  the  mortgage,  author- 
ized by  the  acts  ef  1850  and  1861,  was  to  vest  the  ownership 
of  the  bonds  in  the  State,  secured  by  the  mortgage.  The 
State  had,  therefore,  a  valuable  interest  in  those  bonds  and 
mortgage,  as  a  fund  to  dispose  of,  in  aid  of  other  works  of 
internal  improvement,  subject  to  existing  equities.  W.  C. 
dt  R.  It.  Co.  v.  IF.  B.  11.  Co ,  66  N.  C.  E.  00. 

2.  In  transferring  the  bonds  to  the  Western  E.  E.,  Co., 
in  payment  of  the  State's  subscription,  the  Geaeral  Assem- 
bly did  not  exceed  its  power.  But  the  General  Assembly 
had  no  power  to  subordinate  these  bonds  to  others  authori- 
zed to  be  issued  ty  the  act  of  March  12th,  1870.     Ibid. 


176 


EXECUTION— I— II. 


EXECUTION 


i. 
ii. 


in. 


IV. 


When  to  issue  and  its  teste. 

When  to  be  issued  from  the  Su- 
preme and  be  made  returnable 
to  the  Superior  Court. 

What  may  be  levied  on  and  sold 
under  execution. 

Levy,  sale  and  application  of  the 
money  raised. 


V.     Lien   and    priority    of    execu- 
tions. 

VI.  What  may  be  received   under 

an  execution. 

VII.  Supplemental  proceedings. 
VIII.     Irregular  and  void  executions 

how  set  aside. 


I.     WHEN  TO  ISSUE  AND  ITS  TESTE. 

1.  Section  10,  of  the  ordinance  of  June  23d  18G6,  ("To 
change  the  jurisdiction,  &c")  modified  the  provisions  of  the 
Eev.  Code,  e.  42,  s.  29,  directing  Clerks  to  issue  executions 
within  six  weeks ;  so  that  a  clerk  who  after  Spring  Term, 
1867,  failed  to  comply  with  the  above  statute,  was  not  respon- 
sible therefor.     Badham  v.  Jones,  64  IS".  C.  R.  655. 

2.  A  minute  upon  the  docket,  "  Issue  execution,"  is  not 
to  be  taken  as  a  mandate  of  the  court,  although  it  may  be 
such  a  memorandum  as  the  clerk  may  extend  into  an  order, 
or,  as  may  enable  the  court  afterwards  to  have  such  order 
entered  nunc  fro  tunc.     Ibid. 

3.  Where  there  is  a  judgment  and  fi.  fa.  or  vend.  expo. 
issues  during  the  life  of  the  defendant,  the  sheriff  may  pro- 
ceed to  sell,  although  the  defendant  dies  before  the  sale ;  and. 
so  he  may,  when  the  fi.  fa.  or  vend.  expo,  issues  after  the 
death,  if  tested  before.  But  if  the  sheriff,  for  any  cause, 
return  the  process  without  a  sale,  no  alias  can  issue  tested 
after  the  death  of  the  defendant  without  a  sci.  fa.  against 
his  heirs.     Aycock  v.  Harrison,  65  N.  C.  R.  8. 

4.  The  act  of  Assembly,  1870-'71,  chapter  42,  by  which 
executions  issued  on  judgments  in  civil  actions,  are  required 
to  be  tested  as  of  the  term  next  before  the  day  on  which  they 
are  issued,  is  merely  directory,  and  its  omission  does  not  viti- 
ate the  process.     Bryan  v.  Hubbs,  69  N.  0.  R.  428 

II.     WHEN  TO  BE   ISSUED  FROM   THE  SUPREME  AND   BE   MADE   RETURNABLE  TO 

THE  SUPERIOR  COURT. 

1.  When  an  execution  is  issued  from  the  Supreme  Court 
returnable  to  the  Superior  Court,  according  to  the  provisions 
of  the  Revised  Code,  ch.  33,  sec.  6,  and  was  docketed  on  the 
execution  docket  of  the  latter  court,  tfie  execution  is  treated 
as  received  under  color  and  by  virtue  of  the  clerk's  office, 


EXECUTION— II—  III.  177 

.tind  he  cannot  be  allowed  to  suggest  irregularities  therein. 
Greenlee  v.  Sudderth,  05  N.  0.  P.  170. 

2.  In  such  a  case  as  that  above  stated,  the  judgment  is 
.not  reversed,  but  judgment  is  rendered  in  this  court  accord- 
ing to  the  modification  resulting  from  the  opiuiou,  and  in 
this  case  it  was  referred  to  the  clerk  to  ascertain  and  report 
the  current  rate  of  gold,  and  judgment  was  thereupon  ren- 
dered in  this  court  in  accordance  with  the  decision.     Ibid. 

III.  WHAT  MAY  BE  LEVIED  ON  AND  SOLD  UNDER  EXECUTION. 

1.  Where  the  defendant  in  an  execution  had  conveyed 
all  his  property,  real  ami  personal,  to  a  third  person  :  held, 
that  the  plaintiff  had  a  right  to  direct  the  officer  to  levy  upon 
the  real  estate  before  the  personalty.  Standi  v.  Branch, 
Phil.  Pep.  300. 

2.  A  defendant  may  expressly  or  by  implication  waive 
the  right  to  have  his  personal  estate  levied  upon  before  his 
real  estate,  and  a  fraudulent  conveyance  of  all  his  estate  will 
.amount  to  such  a  waiver.     IlM. 

3.  Where  a  sheriff,  under  a  ven.  ex.  having  relation  prior 
to  a  certain  deed  in  trust,  sold  land  which  had  been  con- 
veyed in  such  deed  to  secure  creditors,  and  upon  being 
indemnified  allowed  the  trustee  to  retain  the  surplus  beyond 
what  the  process  in  his  hands  called  for ;  and  before  the  re- 
turn day  other  like  writs,  having  similar  relation,  were  placed 
in  his  hands,  upon  which  he  returned,  ''  To  hand  too  late  to 
sell :"  held,  that  the  creditors  under  the  later  writs  had  a 
right  to  join  in  a  bill  to  subject  such  surplus  to  the  satisfac- 
tion of  their  debts.     Boyd  v.  Murray,  Phil.  Eq.  E.  238. 

4.  Also,  that  the  sheriff,  having  made  such  a  return,  could 
not  be  compelled  by  a  rule  to  bring  in  the  money.     Ibid. 

5.  The  5th  section  of  the  Ordinance  of  the  Convention  of 
1805  (Stay  Law)  does  not  affect  writs  of  ven.  ex.     Ibid. 

0.  The  interest  of  one  who  holds  laud  under  a  bond  for 
title,  the  price  not  having  been  paid,  is  not  subject  to  sale 
under  execution.     Ledbetter  v.  Anderson,  Phil.  Eq  R.  323. 

7.  The  interest  which  a  lessor  reserves  for  rent  in  the 
crop  of  his  tenant,  is  not,  before  a  separation  thereof,  liable 
to   be  levied   on,  under   an    execution   against   the   lessor. 

Wahton  v.  Bryan,  04  N.  C.  P.  754. 

8.  When  a,fi.  fa.  was  levied  upon  the  land  of  the  defen- 
dant in  the  execution,  in  1802,  and  successive  writs  of  vend. 
4iX])os.  were  issued  thereon  until  the  Fall  of  1807,  when  the 
laud  was  sold  by  the  sheriff,  and  in  tbe  meantime,  in  the  year 

12 


178  EXECUTION— III— IV. 

1866  the  same  laud  was  conveyed  by  the  defendant  in  the- 
execution  by  a  deed  in  trust,  it  was  held,  that  the  crops  grow- 
ing ou  the  laud  iu  1867,  did  not  pass  to  the  purchaser  of  the 
laud  under  the  execution,  but  belonged  to  the  bargainee 
under  the  deed  iu  trust.  Walton  v.  Jordan,  65  N.  0.  K.  170. 
1).  Crops  growing  on  laud  pass,  by  presumption  of  law, 
with  the  title  of  the  laud,  but  the  presumption  may  be  rebut- 
ted even  by  parol  evidence.     Ibid. 

10.  Where  a  debtor  conveys  property  iu  trust  to  sell  and 
pay  certain  creditors,  the  trustees  holds  in  trust  for  the  cred- 
itors, and  then  in  trust  for  the  debtor  as  a  resulting  trust. 
This  resultiug  trust  cannot  be  sold  under  executiou,  as  an 
equitable  estate,  for,  by  the  provisions  of  the  statute,  the 
purchaser  at  executiou  sale,  takes  the  legal  as  well  as  equi- 
table estate,  which  would  cut  off  the  creditors.  Sprinkle  v. 
Martin,  66  N.  0.  11.  55. 

11.  After  the  debts  are  paid,  the  resulting  trust  is  liable 
to  sale  under  execution.  But  a  mixed  trust  cannot  be  sold  in 
that  way.     Ibid. 

12.  Contingent  interests,  such  as  contingent  remainders, 
conditional  limitations  and  executory  devises  are  not  liable  to 
be  sold  under  execution.  Hence  where  laud  was  devised  to 
A  for  life,  aud  at  his  death  to  such  of  his  children  as  might 
then  be  living,  aud  the  issue  of  such  as  might  have  died 
leaving  issue,  and  if  A  should  die  without  issue  living  at  his 
death,  then  to  13  in  fee:  It  was  held,  that  while  A  was  living 
unmarried  and  without  children,  the  contingent  interest  of  B 
in  the  land  could  not  be  sold  under  execution,  nor  made 
available  iu  any  other  way  to  the  paymeut  of  a  judgment 
against  him.     Watson  v.  JJodd,  68  K.  C.  11.  528. 

13.  Where,  upou  the  sale  ot  laud,  a  bond  to  make  title 
upon  the  payment  of  the  purchase  money  was  given  to  the 
purchaser  and  afterwards  upou  the  assignment  of  his  interest, 
the  money  was  paid  by  the  assignee:  It  was  held,  that  her 
before  a  (Wed  was  executed  to  him,  had  such  au  unmixed 
trust  as  was  liable  to  be  sold  under  execution.  Phillips  v. 
Davis,  61)  N.  C.  1?.  117. 

IV.     LEVY,  SALE  AND  APPLICATION  OF  THE  MONEY  RAISED. 

1.  The  equity  of  marshalling  cannot  be  administered  up- 
on an  application  by  a  Sheriff  for  instructions  for  the  distri- 
bution of  money  raised  upou  sundry  executions.  Roberts  v. 
Oldham,  63  N.  C.  It  297. 

2      Money  paid  to  a  deputy  sheriff  by  the  defendant,  on 


EXECUTION— IV.— V.  170 

certain  executions  then  in  such  officer's  hands,  is  by  the  law, 
at  once  applied  to  such  executions ;  therefore,  it  cannot  be 
recovered  from  such  officer  by  the  defendant,  upon  a  promise 
by  the  former  to  account  with  him.  Henry  v.  Rich,  64  JST. 
0.  R.  379. 

3.  If  such  money  be  misapplied  by  the  officer,  it  is  a  ques- 
tion betwixt  him  and  the  plaintijjs  in  the  executions  only. 
Ibid. 

4.  A  sale  under  execution,  made  at  the  court  house, 
whereby  the  general  law  sales  are  required  to  be  made,  with 
the  assent  of  the  debtor  in  the  execution  is  valid,  notwith- 
standing the  requirements  of  a  private  local  law  directing 
such  sales  to  be  made  on  the  premises  ;  and  the  purchaser  of 
land  at  a  sale  so  made  at  the  court  house  acquires  a  good 
title.     Biggs  v.  Brickell,  68  N.  0.  R.  239. 

See  (Amendment — Of  the  pleadings  and  proceedings  ) 

V.     LIEN  AND  PRIORITY  OF  EXECUTIONS. 

1.  If  an  execution  by  its  own  teste  be  upon  an  equal  foot- 
ing with  executions  in  behalf  of  other  persons,  it  will  not  be 
postponed  because,  being  an  alias,  the  original  upon  which 
it  issued  was  indulged.     Roberts  v.  Oldham,  63  N".  0.  R.  297. 

2.  The  rule,  that  the  lien  ot  an  alias  execution  relates  to 
the  teste  of  the  original,  is  not  affected  by  the  fact  that  the 
alias  issued  from  the  Court  of  another  county,  whilst  the- 
junior  execution  (of  the  creditor  contesting)  issued  from  the 
Court  of  the  county  where  the  property  lies,  and  in  point  of 
fact,  was  first  levied  thereupon.  Allen  v.  Plummer,  63  N. 
0.  R.  307. 

3.  An  execution  placed  in  a  sheriff's  hands  after  sale  un- 
der other  process,  but  before  the  return  of  the  proceeds,  can 
not  compeie  therefor  with  the  executions  under  which  the 
sale  was  made.     Ibid. 

4.  If  the  collection  of  the  money  due  upon  the  execution 
of  oldest  teste  be  enjoined,  such  execution  is  not  to  be  con- 
sidered in  applying  the  proceeds  of  a  sale  made  whilst  it  and 
other  executions  were  in  the  hands  of  the  Sheriff.  Neivlin  v. 
Murray,  63  N.  C.  R.  566. 

5.  Process  of  execution  issued  during  the  pendency  of  an 
injunction  against  the  collection  of  the  money  due  upon  the 
judgment,  is  without  effect;  and,  even  if  the  injunction  be 
dissolved  by  consent  after  the  sale  and  before  the  return  of 
the  process,  such  process  will  not  share  in  the  proceeds.  Ibid. 

6.  It  is  not  necessary  that  a  writ  of  execution  shall  be 


180  EXECUTION— V. 

made  returnable  to  the  next  term  after  that  at  which  it  was 
tested.     Faircloth  v.  Ferrett,  63  N.  0  E.  (540. 

7.  The  fact  that  the  older  writs  of  Ven.  Ex.  are  affected 
by  the  Stay  Law,  in  a  case  where  the  property  levied  on  was 
sold  by  writs  not  so  affected — does  not  change  the  rule  that 
the  proceeds  of  sale  by  a  Sheriff  are  to  be  applied  to  the  exe- 
cution in  his  hands.     Dunn  v.  Nichols,  03  N.  0.  E.  107. 

8.  The  Fi.  Fa.  clause  attached  to  a  writ  of  Yen.  Ex.  has 
not  the  force  of  an  alias  Fi.  Fa.,  but  is  dependent  upon  the 
result  of  the  sale  under  the  Ven.  Ex.;  when,  if  such  sale  be 
insufficient  for  the  purposes  of  the  execution,  it  for  the  first 
time  becomes  operative.     Ibid. 

9.  Where  personal  property  was  sold  under  a  junior  exe- 
'cution,  before  it  was  known  what  would  be  the  result  of  a  sale 
under  a  Ven  Ex.  of  older  date,  levied  on  land:  held,  that  its 
proceeds  were  appropriated  to  such  execution.     Ibid. 

10.  The  Circuit  Court  of  the  United  States,  is  not,  in  any 
sense,  a  Foreign  Court;  its  judgments  and  process  bind  pro- 
prio  vigore,  and  create  legal  rights,  which  the  State  Courts 
are  bound  to  recognize,  and,  will  enforce  when  the  estate  or 
property,  subject  to  the  right,  comes  within  their  control. 
Coughlan  v.  White,  60  N.  C.  E.  102. 

11.  Executions  issued  from  the  United  States  Courts 
create  a  lien  from  their  teste.     Hid. 

12.  Where  a  judgment  was  obtained,  in  the  Circuit  Court 
of  the  United  States,  and  execution  was  issued  thereon  and 
levied  upon  the  land  of  the  defendant  in  said  execution,  and 
when  a  sheriff  had  other  executions  from  the  State  courts, 
against  the  same  party,  issued  upon  judgments,  some  of 
which  were  of  lien  before  and  others  after,  the  teste  of  the 
execution  from  the  Circuit  Court,  and  the  sheriff  had  levied 
upon  and  sold  the  land  of  the  defendant:  held,  that  the 
plaintiffs  in  the  execution  from  the  United  States  Court  were 
entitled  to  the  residue  of  the  money  in  the  hands  of  the 
Sheriff  after  satisfying  the  judgments  of  a  prior  lien  to  theirs, 
and  that  upon  a  rule  iu  the  Superior  Court,  the  Judge  should 
have  ordered  the  application  accordingly.     Ibid. 

13.  The  wrongful  refusal  of  a  court  to  permit  a  judgment 
creditor  to  have  executiou  on  his  judgment,  does  not  operate 
(upon  the  abolition  of  such  cou^t,  pending  an  appeal  from 
such  refusal)  to  impair  any  lien  acquired  theretofore,  or  which 
might  have  been  acquired  thereafter,  but  for  such  refusal, 
under  the  maxim  actus  legis  nemini  facit  injuriam.  lsler  v. 
Broivn,  66  N".  C.  E.  556.  * 

14.  Hence,  where,  after  judgment  obtained  in  1861,  and 
executions  regularly  kept  up  thereon,  a  motion  was  made  by 


EXECUTION— V.— VI.— VII.  181 

a  judgment  creditor  in  I860,  in  one  of  the  late  County  Courts 
for  execution  upon  his  judgment,  which  was  wrongfully 
refused,  and  pending  an  appeal  therefrom,  such  court  was 
abolished :  it  was  held,  that  one  who  purchased  from  the 
debtor  pending  the  appeal,  took  the  legal  estate,  but  subject 
to  such  lien  as  would  have  been  acquired,  had  execution 
issued.     1  hid. 

15.  In  snch  a  case,  if  the  judgment  creditor  had  not  a 
complete  lien  upon  the  estate  of  his  debtor,  he  had  at  least 
an  inchoate  lien,  with  a  right  to  perfect  it  by  issuing  an  exe- 
cution ;  his  proceeding  to  cause  execution  to  be  issued,  con- 
stituted a  lis  pendens,  of  which  every  one  is  held  to  have  had 
notice,  and  a  party  purchasing  from  the  judgment  debtor, 
pending  the  proceedings,  is  considered  as  dealing  with  him 
under  exactly  the  same  conditions,  and  subject  to  the  same 
liens,  as  if  the  County  Court  had  not  refused  an  execution, 
and  the  same  had  been  regularly  issued.     Ibid. 

16.  The  creditor  so  delayed  must  be  placed  in  statu  quo, 
and  as  a  corollary,  any  such  purchaser  is  affected  with  notice 
by  a  presumption  juris  et  dejure.     Hid. 

17.  The  above  stated  rule  is  founded  on  the  maxim 
pendente  lite  nihil  innovetiir,  and  is  sustained  by  considera- 
tions of  public  policy.     Ibid. 

See  (Execution — Supplemental  Proceedings  6,  7.) 

VI.     WHAT  MAY  BE  RECEIVED  UNDER,  EXECUTION. 

1.  A  party  has  a  right  to  instruct  a  sheriff  to  collect  in 
specie;  but  the  latter  in  the  absence  of  instructions  to  the 
contrary,  is  justified  in  receiving  currency,  i.  e.,  whatever  is 
passing  currently  in  payment  of  debts  of  the  character  of 
that  which  he  has  to  collect.  Atkins  v.  Mooney,  Phil.  L.  P. 
31. 

2.  In  the  present  condition  of  the  Government  and  the 
courts,  and  as  the  process  of  tbe  courts  is  now  controlled,  a 
plaintiff  in  execution  can  only  collect  currency,  or  United 
States  Treasury  notes.  Therefore,  in  assessing  damages,  the 
jury  should  estimate  the  value  of  the  demand  in  currency. 
Gibson  v.  Groner,  03  X.  C.  R.  10 

VII.     SUPPLEMENTAL  PROCEEDINGS. 

1.  The  defendant,  by  a  decree  in  the  Supreme  Court,  had 
recovered  of  the  plaintiffs  a  sum  of  money;  whilst  the  exe- 
cution was  in  the  hands  of  the  sheriff  the  plaintiffs  recovered 


1 82  EXECUTION— VII. 

from  the  defendant,  by  judgment  before  a  magistrate,  a  like 
amount, — being  for  items  in  their  account  not  allowed  in  the 
case  in  the  Supreme  Court;  these  latter  judgments  were 
docketed,  and  executions  were  taken  out  upon  them  and 
returned  nulla  bona;  the  plaintiffs  then  asked  for  an  order  to 
have  the  amount  of  the  decree  in  favor  of  the  defendant 
applied  to  their  judgments,  (C.C.  P.,  s.  264:)  held,  that  they 
were  entitled  to  such  relief.  Hogan  v.  Kirhlaud,  03  N.  C.  R.' 
250. 

2.  Objections,  that  the  judgments  were  obtained  subse- 
quently to  the  decree,  and,  that  the  latter  was  rendered  in 
Equity — as  also,  in  the  Supreme  Court,  are  not  material. 

3.  The  receiver  under  supplementary  proceedings,  provi- 
ded in  C.  C.  P.,  s.  270,  must  be  appointed  by  the  Judge,  and 
not  by  the  Clerk.     Parks  v.  Sprinlde,  64  N".  C.  R.  637. 

4.  In  a  race  of  diligence  between  creditors  under  such 
proceedings  and  appointment,  if  the  personal  property  sought 
to  be  subjected  be  such  as  may  be  levied  on  and  seized, priority 
is  to  be  tested  by  precedence  in  the  appointment  of  the 
receiver;  in  case  a  receiver  were  applied  for  earlier  by  one, 
but  another  obtained  an  earlier  appointment,  it  seems  that 
priority  will  be  determined  by  the  date  of  application.     Ibid. 

5.  Therefore,  where  the  judgment  had  been  obtained  and 
docketed  by  the  plaintiff  at  Wilkes  Court  against  one  Mar- 
tin, and  the  latter  upon  examination  said  that  one  Shuford, 
a  non-resident  of  the  State,  but  at  the  time  in  Catawba 
County,  was  indebted  to  him,  and  a  receiver  was  appointed 
by  the  judge  on  the  27th  cf  April,  1870,  and  an  older  served 
upon  Shuford  to  answer  upon  5th  of  May  ;  where,  also,  the 
defendant,  at  same  Court  and  term,  likewise  obtained  and 
docketed  a  judgment  against  Martin:  on  the  28th  of  April, 
docketed  it  in  Catawba  County:  on  the  29th,  obtained  an 
order  from  the  Clerk  of  Catawba  Court  for  Shuford  to  answer, 
who  answered  on  the  same  day,  and  immediately  paid  a  part 
of  his  debt  into  the  Clerk's  office  ;  the  Clerk  on  the  same  day 
being  notified  of  the  appointment  of  the  plaintiff's  receiver, 
and  on  the  next  day  paying  the  money  received  by  him  to 
the  defendant :  held*  that  this  payment  by  the  clerk  was  in 
contempt  of  the  Judge's  order,  and  that  the  Judge  should 
have  compelled  him  to  pay  the  amount  again  to  the  plaintiff's 
receiver,  to  be  held  subject  to  the  Judges  future  orders. 
Ibid. 

6.  Where  a  debtor  executes  a  deed  in  trust  to  a  trustee 
to  secure  certain  debts  therein  mentioned,  aud  after  the  reg- 
istration of  the  deed,  a  creditor  obtains  judgment  and  has 


EXECUTION— YII.  183 

the  same  duly  docketed  ;  the  judgment  under  the  provisions 
■of  C.  C.  P.,  sees.  254,  503,  is  a  lien  upon  the  equitable  estate 
of  the  debtor.     McKeithan  v.  Walker,  66  X.  0.  E.  95. 

7.  The  lien  thus  acquired  cannot  be  enforced  by  a  sale 
under  execution.  In  order  to  sell  an  equitable  estate  not  lia- 
ble to  a  sale  under  execution,  the  plaintiff  in  the  execution 
must  resort  to  his  action  (as  formerly,  to  bill  in  equity,)  to  as- 
certain the  rights  of  all  parties  interested  and  to  enforce  his 
lien.     Ibid. 

8.  The  purpose  of  the  0.  C.  P.,  sees.  204,  266,  was  to  give 
a  remedy  by  ''Proceedings  Supplemental  to  Execution,"  to  a 
plaintiff  only  in  case  the  defendant  had  no  known  property 
liable  to  execution,  or  to  what  is  in  the  nature  of  execution, 
proceedings  to  enforce  a  sale  to  satisfy  the  debt.     1  bid. 

9.  Supplemental  proceedings  may  be  commenced  before 
the  sale  of  the  property  levied  on,  on  affidavit,  or  other  proof 
of  its  sufficient  value.  But  no  final  order  can  be  made,  ap- 
propriating to  the  creditor  any  property  discovered,  until  the 
property  previously  levied  on  has  been  exhausted.     Ibid. 

10.  Under  sections  264  and  266,  C  0.  P.,  there  is  a  dis- 
tinction made  in  the  requirements  for  proceedings  supple- 
mentary to  execution,  where  the  execution  is  returned  unsat- 
isfied, and  where  the  execution  is  issued,  but  before  its  re- 
turn ;  in  the  former  case,  an  affidavit  that  the  execution  has 
been  returned  unsatisfied,  and  that  the  defendant  has  prop- 
erty, orchoses  in  action,  which  ought  to  be  subjected,  is  suf- 
ficient to  warrant  the  proceedings  ;  in  the  latter,  the  affidavit 
should  show  that  the  debtor  has  no  property  which  can  be 
reached  by  execution,  and  that  he  has  property,  or  choses  in 
action,  which  he  unjustly  refuses  to  apply  to  the  satisfaction 
of  the  judgment.     Hutchinson  v.  Symons,  67  X.  0.  R.  156. 

11.  The  purpose  of  the  Code  was,  to  give  proceedings 
supplementary  to  execution,  only  in  case  the  debtor  has  no 
property  liable  to  execution,  or  what  is  in  the  nature  of  the 
execution,  to-wit :  proceedings  to  euforce  sale.     Ibid. 

12.  The  proper  construction  of  the  act  of  1812,  in  relation 
to  the  sale  of  trusts  and  equities  of  redemption  under  exe- 
cution, discussed  by  Pearson,  C.  J.     Ibid. 

13.  Where  a  judgment  was  rendered  in  one  county,  and 
docketed  in  another,  proceedings  supplementary  to  execution 
should  be  instituted  in  the  county  in  which  the  judgment 
was  rendered,  as  the  action  is  pending  in  that  county  until 
the  judgment  is  satisfied.     Ibid. 

14.  It  is  the  right  of  every  creditor  to  have  his  debt  paid 
.to  himself,  ami  a  law,  authorizing  payment  to  be  made  to 


184  EXECUTION— VII.— YIII. 

another  person,  without  the  consent  of  the  creditor,  is  in 
derogation  of  this  common  right,  and  ought  to  be  strictly 
construed.     Howie  v.  Miller,  01  N.  0.  E.  459. 

15.  Therefore,  as  sec.  205,  0.  0.  P.,  authorizing  "  any 
person  indebted  to  the  judgment  debtor  to  pay  to  the  sheriff 
the  amount  of  his  debt,  &c,"  is  worded  in  the  singular  num- 
ber: it  was  held,  that  said  section,  especially  when  consid- 
ered in  connection  with  sections  204  and  200,  did  not  apply 
to  cases  where  there  are  several  dehtors  in  the  same  judg- 
ment.    Ibid. 

See  (Husband  and  Wife — Conveyances  by  them  0.) 

VIII.     OF  VOID  AND  IRREGULAR  EXECUTIONS  AND  HOW  SET  ASIDE. 

1.  The  "year  and  a  day"  mentioned  in  the  Eev.  Code, 
ch.  31,  sec.  100,  runs  from  the  issuing,  and  not  from  the 
return  of  the  execution  ;  therefore,,  where  the  former  execu- 
tion had  been  issued  February  14th,  1855,  a  second  purport- 
ing to  be  an  alias  issued  May  3d,  1800,  was  set  aside  as 
irregular.     Simpson  v.  Sutton,  Phil.  L.  E.  112. 

2.  The  right  to  have  an  execution  set  aside,  which  had 
been  issued  before  the  date  to  which  it  had  been  postponed 
by  au  order  of  record,  is  personal  to  the  defendant  therein  ? 
therefore,  where,  upon  the  confession  of  a  judgment  at  June 
Term,  1800,  an  entry  was  made,  "  Execution  stayed  by  order 
of  plaintiff  until  after  April  Term,  1807,"  and  upon  the  de- 
fendant's conveying  his  property  in  trust,  the  plaintiff  ordered 
execution  to  issue  before  such  term :  held,  that  the  court 
AYould  not  set  aside  such  execution  at  the  instance  of  the 
trustee.     Shelton  v.  Fels,  Phil.  L.  E.  178. 

3.  The  5th  section  of  the  Ordinance  of  1800,  entitled 
"  An  Ordinance  to  change  the  jurisdiction  of  the  Courts," 
&0,.,  does  not  apply  to  prevent  the  issue  of  a  writ  of  venditioni 
exponas,  to  enforce  a  levy  upon  land  made  more  than  a  year 
and  a  day  previously.     Mardre  v.  Felton,  Phil.  L.  E.  279. 

4.  The  5th  section  of  the  Ordinance  of  1800,  entitled 
"An  Ordinance  to  change  the  jurisdiction  of  the  courts," 
&c ,  does  not  extend  to  a  writ  of  scire  facias  asking  for  a- 
ven.  ex.     Riddick  v.  Uinton,  Phil.  L.  E.  291. 

5.  Where  a  scire  facias  to  enforce  the  levy  of  an  execu- 
tion had  been  dismissed  in  the  County  Court :  held,  that  it 
was  proper  for  the  Superior  Court,  upon  reversing  that  order; 
to  award  a  procedendo.     Overton  v.  Abbott,  Phil.  L.  E.  293. 

0.  An  action  is  inadmissible  as  a  mode  of  obtaining  relief 
against  an  execution  for  irregularity  :  the  proper  relief  is,  as- 


EXECUTION— VIIL— EXECUTORS,  &c— I.    185 

formerly,  by  motion  to  set  it  aside ;  notice  of  the  order  nisi 
made  thereunder,  operating  in  the  meantime,  as  an  injunc- 
tion against  the  process.  Foard  v.  Alexander,  GO  X.  0.  R.  GO. 
7.  Where  an  action  had  been  resorted  to:  held,  that  it 
could  not  be  treated  as  a  motion  in  the  original  cause  ;  1st, 
because  not  so  entitled ;  2d,  because  the  only  relief  prayed 
for  therein,  was,  a  perpetual  injunction.     Ibid. 


EXECUTORS  AND  ADMINISTRATORS. 


I.     Who  entitled  to  administration. 
II.     What  interest  they  take  in  the 
estate. 

III.  Administrator  de  bonis  non. 

IV.  Executor  de  son  tort. 

V.  In    another  State,    what   they 

may  do  in  this  State. 
VI.     Of  the  effect  of  making  a  debtor 
executor. 

VII.  Of  co-executors  and  administra- 

tors. 

VIII.  Of  sales  by  them  and  their  pur- 

chases at  their  own  sales. 


IX. 

Of  suits  by  them. 

X. 

Of   the  giving    them   time   to 

plead. 

XI. 

Of  the  sale  of  land  for  assets. 

XII. 

Of  their  liability  to  creditors. 

XIII. 

Of  their   liability   to   legatees 

and  next  of  kin. 

XIV. 

Of  distribution    and   advance- 

ments. 

XV. 

Refunding  bonds. 

XVI. 

Commissions. 

I.     WHO  ENTITLED  TO  ADMINISTRATION. 

1.  One  who  has  precedence  in  a  claim  for  letters  of  ad- 
ministration loses  such  right  not  by  delay  merely,  but  by  un- 
reasonable delay,  which  is  a  matter  of  law.  Hughes  v.  Pip- 
kin, Phil.  L.  B.  4 

2.  Letters  ot  administration  having  at  the  first  term  of 
the  court  been  granted  to  one  not  primarily  entitled,  upon 
application  at  the  next  term  by  the  person  primarily  entitled 
and  upon  his  showing  cause  for  not  having  applied  before, 
held  that  it  was  the  duty  of  the  court  to  set  aside  the  former 
letters,  and  to  issue  letters  to  the  second  applicant.     Ibid. 

3.  Where  a  will  was  proved  in  common  form,  and,  because 
uo  executor  was  named  therein,  administration  cum  testamento 
(fiuie.ro  was  granted:  held,  that  upon  a  contest  in  regard  to 
such  will  occurring  subsequently,  and  a  consequent  revocation 
of  the  probate,  the  previous  grant  of  letters  was  not  thereby 
necessarily  annulled.     Floyd  v.  Herring,  04  N*.  0.  R.  409. 


186  EXECUTORS  AND  ADMINISTRATORS— II.— Ill 

II    WHAT  INTEREST  THEY  TAKE  IN  THE  ESTATE. 

1.  Ad  admistrator  has  no  estate  in  the  realty  of  the 
deceased ;  therefore,  he  cannot  mantain  an  action  to  recover 
possession  of  realty,  under  the  proceedings  "  for  the  relief  of 
Landlords,"  authorized  by  act  of  1803,  c.  48,  and  1864  c.  12. 
Floyd  v.  Herring,  64  N.  C.  R.  409. 

2.  Where,  upon  a  lease  of  turpentine  boxes  for  four  years, 
the  lessee  covenanted  to  pay  the  lessor  at  the  end  of  each  year 
a  certain  rate  per  thousand  boxes,  and  the  lessor  died  before 
the  expiration  of  the  second  year  leaving  a  will  devising  the 
land,  it  ivas  held,  that  the  executor  could  only  recover  for 
the  rent  of  the  first  year,  the  rent  for  the  remaining  years 
having  followed  the  reversion  to  the  devisee.  Rogers  v.  Mc- 
Kensie,  65  N.  0.  R.  218. 

III.     DE  BONIS  NON. 

1.  The  rights  of  an  administrator,  de  bonis  non,  relates  to 
the  death  of  the  intestate,  and  he  is  bound  only  by  such  law- 
ful acts  of  the  previous  administrator  as  were  done  in  due 
course  of  administration  ;  for  any  devestavit  on  the  part  of 
the  former  administrator,  the  administaator  de  bonis  non 
ought  to  recover  the  value  of  the  goods  wasted,  by  an  action 
on  the  bond  of  his  predecessor;  but  where  the  sureties  on 
the  bond  are  insolvent,  such  action  would  be  unavailing,  and 
therefore,  unnecessary.     Badger  v.  Jones,  (Hi  N.  0  R.  305. 

2.  It  is  the  duty  of  the  administrator,  de  bonis  own,  to 
complete  the  administration  of  the  estate,  by  collecting  the 
unadministered  assets,  applying  them  in  payment  of  debts, 
and  when  there  are  no  personal  effects,  to  obtain  license  to 
sell  the  real  estate.     Ibid. 

3.  An  action  commenced  before  the  adoption  of  the  0. 
0.  P.,  in  the  name  of  an  administrator  de  bonis  non  on  a  bond 
given  to  the  first  administrator  as  such  may  be  sustained, 
although  such  administrator  de  bonis  non  has  paid  it  over  to 
one  of  the  next  of  kin  of  the  intestate  in  a  settlement  of  the 
estate  with  him,  and  has  taken  his  receipt  therefor.  Setzer 
&  Rhodes  v.  Lewis,  69  N.  0.  R.  133. 

4.  A  privity  exists  between  an  administrator  de  bonis  non 
and  the  first  administrator,  as  well  as  in  the  case  of  plaintiffs, 
as  of  defendants,  so  that  the  former  succeeds  to  all  the 
rights  of  the  intestate,  in  respect  to  personal  property,  which 
the  first  had  not  fully  administered ;  and  a  judgment  against 
the   first  administrator,  is  conclusive  evidence  against  the 


EXECUTOBS,  &c— III.— IV— V.— VI.  187 

administrator  de  bonis  non,  in  an  action  to  renew  it.  Thomp- 
son v.  Badhan,  70  X.  0.  E.  141. 

5.  Such  judgment  may,  however,  be  impeached  for  fraud 
by  the  administrator  de  bonis  non,  either  by  a  motion  in  the 
cause,  or  by  answer  to  plaintiff's  action  to  revive  it.     Ibid. 

See  (Executors  and  Administrators — Of  the  sale  of  land 
for  assets,  39.) 

IV.     EXECUTOR  DE  SOX  TORT. 

1.  Evidence  to  charge  one  as  executor  de  son  tort,  need  not 
be  sufficient  to  warrant  a  conviction  of  felony.  Israel  v. 
King,  69  JS".  0.  E.  373. 

2.  In  seeking  to  charge  a  widow  as  executrix  de  son  tort, 
the  value  of  her  year's  provision  should  be  deducted  from  the 
assets  found  to  be  on  hand.     Ibid. 

3.  The  personal  representative  of  a  deceased  administra- 
tor is  a  necessary  party  to  a  suit  against  his  widow,  seeking 
to  charge  her  as  executrix  de  son  tort.     Ibid. 

V.     IN  ANOTHER  STATE  WHAT  THEY  MAY  DO  IN  THIS  STATE. 

1.  A,  domiciled  in  Virginia,  dies,  leaving  a  note  on  a 
resident  of  this  State  ;  his  administrator  being  duly  qualified 
in  Virginia,  sends  said  note  to  an  attorney  in  this  State,  with 
instructions  to  collect,  compromise,  or  sell  the  same,  as  he 
may  deem  advisable :  held,  that  a  transfer  of  said  note  by  an 
administrator  passed  the  legal  title  thereto  to  the  purchaser. 
Fikldick  v.  Moore,  (J5  K  0.  E.  382. 

2.  Although  A's  administrator  appointed  in  Virginia 
could  not  have  maintained  a  suit  in  his  name  in  this  State 
against  the  maker  of  the  note,  yet  for  all  purposes  in  iMiis, 
he  was  as  much  the  owner  of  the  note  as  he  was  of  any  per- 
sonal property  which  he  took  into  his  possession  in  Virginia, 
and  brought  to  this  State  and  sold.     Ibid. 

VI.     OF  THE  EFFECT  OF  ilAKlNO  A  DEBTOR  EXECUTOR. 

The  Act  (R.  C,  ch.  46,  s.  31,)  which  provides  that  "the 
appointing  any  person  executor  shall  not  be  a  discharge  of  any 
debt  or  demand  due  from  him  to  the  testator,"  includes  cases 
where  the  executor  acts  under  the  appointment,  as  well  as 
those  where  he  does  not.     Moore  v.  Miller,  Phil.  Eq.  R.  359. 


188  EXECUTORS,  &c—  VII.— VIII. 

VII.     OF  CO-EXECUTORS  AND  ADMINISTRATORS,  &c. 

1.  The  complainant  having  qualified  as  one  of  the  execu- 
tors of  the  will  before  he  knew  of  the  existence  of  a  marriage 
agreement,  is  not  estopped  from  filing  a  bill  against  his  co- 
executor  for  property  in  the  hands  of  the  latter,  but  claimed 
by  the  complainant  under  the  agreement.  Harrington  v. 
McLean,  Phil.  Eq.  R  258. 

2.  In  a  suit  charging  two  executors  with  negligence,  in 
investing  in  Confederate  money,  although  the  proofs  show 
that  only  one  of  them  was  active  in  so  doing,  yet  if  there  be 
no  allegation  in  the  pleadings,  sustained  by  full  proofs,  that 
the  other  dissented  from  such  investment,  he  also  will,  be 
chargeable  with  the  loss.  Kincade  v.  Coriley,  64  N".  0.  R.  387. 

3.  The  office  of  executorship  is  joint,  and  if  one  or  two 
executors  die,  the  office  survives,  and  the  survivor  is  entitled 
to  take  into  possession  all  the  estate  of  the  testator,  so  as  to 
finish  the  administration  of  the  estate.  McDowell  v.  Clark, 
68  N.  C.  R.  118. 

4.  The  executor  of  one  of  two  executors  of  a  person  de- 
ceased cannot  be  sued  without  joining  the  surviving  execu- 
tor, in  vwhose  hands  the  assets  of  the  testator  are  supposed 
te  be.     Ibid. 

VIII.     OF  SALES  BY  THEM  AND  THEIR  PURCHASES  AT  THEIR  OWN   SALES. 

1.  Where  an  executor  buys  property  at  his  own  sale, 
either  directly  or  indirectly,  such  sale  will  (as  of  course)  be 
set  aside  at  the  instance  of  the  parties  interested.  Stilly  v.. 
Bice,  67  N.  C.  R.  178. 

2.  The  agent  who  bids  in  the  property  at  such  sale  is  not 
a  necessary  party  in  a  proceeding  to  set  it  aside.     Ibid. 

3.  It  is  against  the  policy  of  the  law  to  allow  an  Admin- 
istrator to  buy  at  his  own  sale :  and  when  he  does  so,  it  is 
at  the  option  of  those  interested  to  treat  the  sale  as  a  nullity 
and  set  it  aside,  or  to  let  it  stand  and  demand  a  full  price. 
Froneberger  v.  Lewis,  70  N\  C.  R.  456. 

4.  Where  au  executor  is  authorized  to  sell  the  lands  of 
his  testator  in  his  discretion,  this  court  will  not  interfere  by 
entertaining  an  application  for  a  license  to  sell.  Such  au 
executor  may  be  compelled  to  sell,  when  third  persons  have 
a  right  to  compel  him  to  do  so;  and  the  court  will  restrain 
an  abuse  of  his  discretion.  Ilinton  v.  Hinton,  70  N.  0.  R. 
730. 


EXECUTORS,  &c— IX.— X.— XI.  189 

IX.     OF  SUITS  BY  THEM. 

1.  Executors  who  had  qualified  in  South  Carolina,  and 
afterwards  removed  property  from  that  State  into  this,  may 
maintain  a  suit  here  tor  such  property,  without  again  proving 
the  will,  and  taking  out  letters :  in  such  case  they  need  only 
show  a  duly  certified  copy  of  the  record,  &c.  in  South  Caro- 
lina, as  evidence  of  their  title.  Beckham  Y.Whittkowski,  G4. 
N.  C  R.  404. 

2.  Where  an  administrator  agreed  with  two  persons  that 
they  should  buy  certain  articles  of  personal  property,  and 
give  their  note  to  the  administrator  therefor,  and  that  the 
property  was  to  be  purchased  for  the  common  benefit  of  all 
three  of  the  parties,  and  that  each  one  should  pay  off  and 
discharge  one-third  part  of  the  note  so  given  :  held,  that  upon 
a  suit  upon  said  note  to  the  administrator,  it  was  competent 
for  defendants  to  offer  parol  testimony  to  prove  the  agree- 
ment betweeu  the  parties,  and  the  plaintiff,  under  the  C.  C. 
P.,  could  recover  of  defendants  but  two-thirds  parts  of  said 
note.     Clark  v.  Clark,  65  N.  C.  R.  055. 

3.  Such  an  agreement  is  not  legal,  unless  it  be  shown  that 
the  ereditors  of  decedent,  or  his  distributees,  may  be  preju- 
diced by  such  conduct  on  the  part  of  the  administrators. 
Ibid. 

4.  Though  it  may  be  that  a  note  payable  to  a  testator 
may  be  assigned  by  one  of  the  three  executors,  yet  a  note 
payable  to  three  persons  as  executors  of  their  testator  cannot 
be  assigned  by  one  of  them  without  the  concurrance  of  the 
others,  so  as  to  enable  the  assignee  to  sue  the  makers  either 
for  the  whole-amount  of  the  note,  or  for  any  part  of  it ;  the 
Code  of  Civil  Procedure,  sec.  55,  not  being  applicable  to  such 
a  ease.     Johnson  v.  Mangum,  05  X.  C.  It.  140. 

X.     OF  THE  GIVING  THEM  TIME  TO  PLEAD. 

Courts  of  Equity  are  not  bound  by  the  statute  allowing 
executors  and  administrators  nine  months  to  plead.  Marsh 
v.  Grist,  Phil.  Eq.  E.  349. 

XI.     OF  THE  SALE  OF  LAND  FOR  ASSETS. 

1.  The  act  of  184G,  ch.  1,  (Rev  Code,  c.  40,  s.  44  )  giving 
to  an  executor  a  right  to  tile  a  petition  to  sell  real  estate, 
&0.,  does  not  apply  to  a  case  in  which  he  has  full  power  to 
soil  such  estate  under  a  will.  Wileii  v.  Wiley.  Phil.  L.  It. 
181. 


190    EXECUTOKS  AND  ADMINISTRATORS— XL 

2.  Nor  does  it  apply  in  such  case,  even  if  the  executor 
has  by  accident  lost  the  personal  estate  of  his  testator  and  for 
that  reason  alone  desires  to  resort  to  the  realty,  his  remedy 
in  such  case  being  only  in  equity.     Ibid. 

3.  The  remedy  provided  by  the  act  applies  only  to  cases 
in  which  otherwise  the  creditor  would  be  compelled  to  resort 
to  a  scire  facias  against  the  heirs.     Ibid. 

4.  A  bill  seeking  to  compel  an  executor  to  execute  a 
general  power  to  sell  real  estate  for  the  payment  of  debts, 
cannot  be  maintained  without  making  the  devisees  of  such 
estate  parties.     Ibid. 

5.  A  bill  by  an  executor,  praying  for  leave  to  sell  land  in 
order  to  pay  debts,  will  not  be  entertained  unless  it  alleges 
distinctly  that  the  personalty  has  been  exhausted.  Wiley  v„ 
Wiley,  63  N.  0.  R.  182. 

6.  Where  an  executor  made  sales  of  personal  property  in 
November,  1861,  and  April,  18(32,  on  six  months'  credit,  for 
Confederate  currency,  and  received  the  proceeds  when  due : 
held,  that  prima  facie  he  was  guilty  of  laches  in  not  disposing 
thereof  in  paying  debts,  or  (failing  in  that)  in  not  investing 
it  some  other  way — but  keeping  it  to  become  worthless  in 
his  hands.     Ibid. 

7.  The  report  of  an  administrator,  who  had  been  licensed 
to  sell  land  by  a  County  Court,  was  returned  and  confirmed, 
and  an  order  made,  to  collect  and  make  title  :  held,  that  upon 
its  appearing  afterwards,  by  the  results  of  a  judgment  and 
execution,  that  the  purchase  money  could  not  be  collected, 
it  was  not  competent  for  the  Comity  Court  to  set  aside  the 
sale.  The  jurisdiction  of  the  Court  in  cases  of  such  sales  is 
at  an  end  upon  the  confirmation  of  the  sale,  and  the  order  to 
collect  and  make  title.     Evans  v.  Singeltary,  63  N.  C.  R.  205. 

8.  The  declaration  as  to  the  state  of  the  assets  made  in 
the  course  of  a  petition  by  an  administrator  to  sell  lands,  is 
not  binding  upon  the  heirs,  &c,  and,  under  our  former  sys- 
tem, those  heirs  had  a  right  to  a  bill  in  equity  against  the 
administrator,  for  an  account  of  his  dealings,  &c ,  and  for  an 
injunction  against  a  sale  in  the  meantime.  Finger  v.  Fin- 
ger, 64  N.  C.  R.  183. 

9.  Where  the  deficiency  in  personal  assets  resulted  from 
accident,  after  they  had  come  into  the  hands  of  the  adminis- 
trator, (here,  Emancipation,  &c.,)  held,  that  the  courts  of  law 
(formerly)  were  not  competent  to  order  a  sale  of  lands  to  pay 
debts,  under  the  act  of  1846,  but  that  application  must  be 
made  to  a  Court  of  Equity.     Ibid. 

10.  The  receipt  by  an  administrator  in  September,  1863, 


EXECUTORS  AND  ADMINISTRATORS— XI.    191 

of  Confederate  money  upon  sales  of  personalty  made  in  Au- 
gust before,  no  more  appearing,  does  not  exhibit  a  want  of 
ordinary  care  in  an  administrator.     Ibid. 

11.  Under  the  former  system,  a  County  Court  had  no 
power,  in  a  petition  by  an  administrator  to  sell  lands,  &c, — 
to  order  an  account  which  could  bind  the  next  of  kin:  this 
could  be  done  only  in  a  proceeding  the  direct  object  of  which 
was  such  an  account.     Kerns  v.  Wallace,  04  N  C  R.  187. 

12.  One  who  alleges  that,  as  last  and  highest  bidder,  he 
had  purchased  lands  at  a  sale  made  by  an  administrator  under 
a  license  from  the  (late)  County  Court,  and  tendered  a  good 
note  for  the  purchase  money,  but  that  the  administrator 
refused  to  make  title,  and  did  not  report  the  sale  to  court,  as 
was  his  duty,  but  had  conveyed  to  a  third  person  :  should  have 
sought  relief  by  application  to  the  court  which  granted  the 
license,  and  in  the  case,  made  by  the  petition  to  sell,  and  can- 
not maintain  a  bill  in  equity  against  the  administrator  and 
the  purchaser,  asking  for  title,  &c.  Mason  v.  Osgood,  01 
X.  C.  R.  467. 

13.  According  to  the  plaintiff's  case,  the  administrator 
had  no  license  to  sell  to  the  party  to  whom  he  had  conveyed, 
and  therefore  such  a  sale  was  a  nullity,  and  the.  plaintiff  could 
nor  proceed  against  him  under  the  idea  that  he  was  a  trustee, 
&c      Ibid. 

14.  Real  estate  is  not  assets  for  the  payment  of  the  debts 
of  descendant  before  the  same  has  been  sold,  and  the  pro- 
ceeds received  by  the  administrator.  Yaugn  v.  Dcloatch,  05 
N.  C.  R.  378 

15.  Whether  an  administrator  can  be  sued  on  his  bond 
where  he  has  been  guilty  of  negligence  in  not  applying  for 
and  obtaining  an  order  to  sell  the  real  estate  of  his  intestate  : 
(J  it  ere  f     Ibid. 

10.  If  a  petition  be  filed  by  an  administrator  for  the  sale 
of  land  for  the  payment  of  the  debts  of  the  intestate,  and  the 
heir-at-law  be  made  a  party  defendant,  and  the  court  ad- 
judges that  the  sale  is  necessary,  and  orders  it,  the  heir-at- 
law  will  be  estopped  to  deny  the  title  of  his  ancestor,  whether 
the  order  was  made  after  a  defence,  or  by  confession  or  de- 
fault; but,  if  the  heir  die  insolvent,  so  that  it  becomes  neces- 
sary to  sell  his  land  to  pay  his  debts,  then  as  the  estoppel 
could  only  operate  as  a  conveyance,  and  would  be  liable  to 
l»e  impeached  by  creditors  as  voluntary  and  therefore  frau- 
dulent as  to  them,  his  administrator,  as  representing  credi- 
tors, has  the  light  to  impeach  it  on  the  same  ground  as  not 
binding  on  him.     Hardee  v.  Williams,  05  N.  O  R.  30. 


192  EXECUTORS  AND  ADMINISTRATORS— XL 

17.  A  proceeding  to  restrain  the  operation  of  a  judgment 
to  sell  lands  for  the  payment  of  the  debts  of  an  intestate  as 
an  estoppel  against  the  administrator  of  an  heir-at-law  whose 
land  is  required  for  the  payment  of  his  debts  should  be  com- 
menced in  the  Superior  Court.  But  if  such  personal  repre- 
sentative had  commenced  proceedings  for  the  sale  of  the  land 
in  question  for  the  payment  of  the  debts  of  the  heir  in  the 
Court  of  Probate  and  the  administrator  of  the  ancestor  plead 
his  judgment  as  an  estoppel,  the  plaintiff  may  in  that  Court 
reply  the  fraud  which  would  be  produced  by  allowing  the 
judgment  to  operate  as  an  estoppel ;  and  the  Court  of  Prob- 
ate might  thus  retain  the  jurisdiction  of  the  cause  which  it 
had  originally  acquired.     Ibid. 

18.  An  administrator  has  no  right  to  an  order  for  the  sale 
of  land  for  the  payment  of  the  debts  of  his  intestate  until  the 
personal  estate  is  exhausted,  and  if  he  has  made  a  distribu- 
tion of  part  of  the  personal  effects  among  the  next  of  kin,  the 
value  of  such  effects  must  be  charged  against  him,  in  taking 
an  account  for  the  purpose  of  ascertaining  whether  he  has 
exhausted  the  personal  estate  of  his  intestate.  And  the  same 
rule  will  apply  as  to  personal  effects  advanced  to  the  widow 
as  a  distributee,  but  not  to  such  as  she  may  take  for  her 
year's  provisions.     Bland  v.  Hartsoe,  65  N.  C.  E.  204. 

19.  Where  the  proceeedings  are  taken,  upon  a  petition  by 
an  administrator  to  sell  land  for  the  payment  of  debts,  before 
the  Judge  of  Probate,  and  he  orders  a  sale  of  the  land  and  it 
is  sold,  and  the  puachaser,  upon  the  confirmation  of  the  sale, 
gets  a  deed  for  the  laud  before  the  purchase  money  is  paid, 
though  the  proceedings  may  be  very  irregular,  yet  the  heirs- 
at-law  cannot  have  the  sale  set  aside  by  the  Judge  of  the 
District  at  the  regular  term  of  the  Superior  Court.  Hyman 
v.  Jamigan,  65  N.  C-  R.  96. 

20.  A  petition  by  an  administrator  to  sell  laud  for  the 
payment  of  debts  is  a  special  proceeding,  and  belongs  to  the 
original  jurisdiction  of  the  Probate  Court :  and  parties  inju- 
red by  such  proceedings  ought  to  apply  to  the  Judge  of 
Probate  for  relief,  and  if  he  refuses  to  act,  or  acts  errone- 
ously in  the  matter,  an  appeal  will  lie  to  the  Judge  of  the 
District  in  Court.     Badger  v.  Jones,  06  N.  C.  R.  305. 

21.  On  a  petition  to  sell  land  by  an  administrator  for  the 
payment  of  debts,  it  is  erroneous  for  the  Judge  of  Probate 
to  make  an  order  for  the  sale  of  the  land  before  the  parties 
defendant  have  been  served  with  process  by  publication 
when  they  were  non-residents:  or,  before  he  had  adjudged 
upon  the  proofs  required  by  the  C.  C.  P.,  sec.  89,  that  the 


EXECUTORS  AND  ADMINISTRATORS— XI.  193 

defendants  had  been  regularly  served  with  process  by  publi- 
cation.    Ibid. 

22.  On  a  petition  by  an  administrator  to  sell  land  for  the 
payment  of  debts,  where  the  heirs  are  minors,  it  is  erroneous 
for  the  Judge  of  Probate  to  make  an  order  of  sale,  where 
there  is  no  order  for  the  appointment  of  the  person  who  ap- 
pears as  guardian  ad  litem  ;  and  no  order  for  such  appoint- 
ment can  be  made  until  the  summons  be  properly  served, 
and  the  other  requirements  of  the  0.  0.  P.,  sec.  59,  be  com- 
plied with.     Ibid. 

23.  It  is  erroneous  for  a  Judge  of  Probate  to  order  a  deed 
to  be  made  to  a  purchaser  of  laud  sold  by  an  administrator 
to  pay  debts,  uutil  the  purchase  money  has  been  paid.    Ibid. 

24.  The  sale  of  real  estate  by  the  heirs  at  law,  within  two 
years  after  the  death  of  the  intestate,  is  void  as  against  the 
•crediters  and  the  administrator.  Rev.  Code,  ch.  46,  sec.  61, 
Acts  of  1868-'6i),  chap.  113,  sec  105.  Badger  v.  Jones,  66 
X.  0.  R.  305 

25.  Where  an  administrator  sold  land  of  his  intestate  for 
the  payment  of  debts,  and  previous  to  the  sale  an  agreement 
was  made  between  him  and  the  creditor  of  the  estate,  "that 
if  he  would  buy  the  laud  he  should  have  credit  on  certain 
claims  and  notes  over  which  he  had  control,  and  which  were 
due  from  the  intestate,  to  the  amount  that  he  (the  adminis- 
trator) could  pay  pro  rata;''''  and  the  creditor  on  the  faith  of 
such  agreement  brought  the  land :  held.,  that  in  an  action  on 
the  bond  given  for  the  purchase  money,  the  defendant  had  a 
right  to  give  in  evidence  the  agreement,  and  was  entitled  to 
credit  according  to  its  terms  :  held  farther,  that  such  agree- 
ment need  not  be  reduced  to  writing,  and  that  it  was  not  con- 
trary to  the  policy  of  the  law.  Norton  v.  Edwards,  66  N.  0. 
R.  367. 

26.  To  an  action  by  an  administrator,  appointed  before 
1st  July,  1869,  on  a  note  executed  to  himself  as  administra- 
tor for  the  purchase  of  land  sold  under  a  license  from  Court, 
a  judgment  quando,  obtained  previously  by  the  purchaser, 
against  such  administrator,  is  inadmissible  as  a  defence,  eith- 
er by  way  of  set-oil  or  counter-claim.  Brandon  v.  Allison, 
M  N.  C.  R.  532. 

27.  Whether  such  would  be  the  case  if  there  were  no  oth- 
er debts  against  the  estate,  and  the  defendant  was  certainly 
entitled  to  have  the  assets  applied  to  his  claim,  qnere.    Ibid. 

28.  Under  the  act,  1868-'69,  chap.  112,  sab  ch.  5,  sec.  1, 
enacting  that  "When  the  personal  estate  of  a  decedent  is  iu- 
sufficient  to  pay  debts,  &c.,  the  executor  or  administrator 

13 


194    EXEOUTOES  AXD  ADMINISTBATOBS— XL 

may  apply  to  the  Superior  Court,  by  petition,  to  sell  the  real 
property  of  the  decedent  for  the  payment  of  debts  :"  it  was 
held,  that  the  word  may,  in  this,  as  in  every  act  imposing  a 
duty,  means  shall,  and  that  by  Superior  Court  is  meant  the 
Clerk  of  said  Court.     Pellitier  v.  Saunders,  07  X.  C.  E  2G1. 

29.  When  the  personal  estate  of  a  decedent  is  insufficient 
to  pay  his  debts,  and  an  administrator  or  executor  refuses,  or 
unduly  delays,  to  apply  to  the  Court  for  the  sale  of  the  real 
estate,  the  Clerk  of  the  Superior  Court  as  Probate  2  udge  has 
jurisdiction,  and  may,  at  the  instance  of  a  creditor,  compel 
such  person  to  perform  his  duty.     Ibid. 

30.  The  act  of  1846,  ch  48,  sec.  53,  gives  administrators- 
express  authority  to  sell  all  the  interest  of  a  deceased  debtor 
in  laud  possessed  by  him,  whether  legal  or  equitable;  and 
also  authorizes  the  administrator  to  sell  auy  land  his  intestate 
may  have  conveyed  for  the  purpose  of  defrauding  creditors. 
Waugh  v.  Blevins,  68  X.  C.  E.  167. 

31.  Where,  under  the  former  practice,  it  was  necessary  to 
sell  the  land  of  an  intestate  to  pay  his  debts,  after  the  plea 
of  fully  administered  had  been  found  in  favor  of  the 
administrator,  the  record  showed  an  order  for  a  sci.  fa.  to  be 
issued  to  the  "  heirs  '"  of  the  intestate  without  naming  them, 
but  showed  that  they  were  named  in  the  order  appointing  a 
guardian  ad  litem,  and  then,  though  the  fact  that  a  sci.  fa* 
had  issued  was  not  stated,  it  appeared  that  there  was  an 
entry  of  judgment  according  to  sci.  fa.,  and  thereupon  the 
land  was  condemned  and  ordered  to  be  sold:  It  was  hell, 
that  these  proceedings  were  sufficient  to  uphold  the  sale  of 
the  land  made  under  them.  Phillips  v.  Davis,  69  X.  C.  B- 
117. 

32.  Where  an  administrator  wastes  the  personal  assets, 
and  does  not  apply  them  to  the  payment  of  the  debts  of  his 
intestate,  and  then  is  removed  for  misconduct  and  another 
person  is  appointed  administrator  de  bonis  non,  the  latter 
must  sue  on  the  bond  of  the  former  administrator,  if  the 
sureties  thereon  are  solvent,  before  he  can  apply  by  petition 
for  the  sale  of  the  land  of  the  intestate.  Latham  v.  Bell,  69* 
X.  C.  E.  L35. 

33.  Upon  a  petition  by  an  administrator  to  sell  laud  for 
the  purpose  of  making  assets  to  pay  debts,  any  person  who 
claims  to  be  the  owner  of  the  laud,  has  the  right  to  be  made 
a  party  and  to  have  an  enquiry  made  as  to  his  title  in  due 
course  of  law.     Gibson  v.  Pitts,  69  X.  0.  E.  155. 

34.  In  a  proceeding  to  subject  real  estate  to  sale  for  as- 
sets, after  a  report  of  the  sale  is  returned  and  confirmed,  the 


EXECUTORS  AND  ADMINISTRATORS— XL  195 

Judge  of  Probate,  upon  propercau.se  shown,  has  the  right  to 
set  the  sale  aside,  and  order  a  resale  of  the  property. 
Lovinier  v.  Pearce,  70  X.  0.  R.  167. 

35.  And  although  the  exercise  of  this  right  is  discretion- 
ary with  the  Judge  of  Probate,  still  it  is  such  a  matter  of 
legal  discretion,  involving  a  "matter  of  law  or  legal  infer- 
ence," that  an  appeal  will  lie  from  his  decision.     Ibl'1. 

36.  There  are  questions  of  fact,  as  distinguished  from 
issues  of  fact  which  the  Probate  Judge  in  cases  before  him, 
and  the  District  Judge  in  cases  before  him,  may  decide 
without  a  jury.  And  in  a  motion  made  to  set  aside  a  sale, 
it  is  not  necessary  for  the  Judge  in  case  of  appeal,  to  send  to 
the  appellate  court  a  separate  statement  of  the  facts  upon 
which  his  decision  rests  when  the  affidavits  and  counter- 
affidavits  for  and  against  the  motion  accompanies  the  case. 
Ibid. 

37.  In  1861,  A,  the  heir-at-law  of  B,  administered  on 
his  estate;  in  1862,  less  than  two  years,  A,  as  heir-at-law, 
agrees  to  sell  certain  lands  belonging  to  the  estate  of  B,  to 
C,  receiving  at  the  time  the  full  value  for  it,  but  executed  no 
deed  for  the  said  land  until  the  year  1864.  In  an  action  to 
sell  this  land  for  assets  to  pay  B's  debts:  it  was  held,  that 
although  the  agreement  to  sell  in  1862,  might  have  been 
defeated  by  B's  creditors,  the  deed  from  0  to  A,  in  1864,  for 
the  same  land  was  valid.  Donolio  v.  Patterson,  70  N.  0.  li. 
649. 

38.  Held,  further,  that  the  act  restraining  the  heir  from 
selling  the  land,  of  his  ancestor  within  two  years,  Eev.  Code, 
chap.  46,  sec.  61,  is  not  a  statute  of  limitation,  which  was 
suspended  by  the  act  of  1861,  chap.  4;  nor  is  it  affected  by 
the  act  of  1863,  chap.  34,  which  provides  that  in  computations 
of  time  for  the  purpose  of  applying  any  statute,  limiting  any 
action  or  suit,  or  any  right  or  rights,  or  for  the  purpose  of 
raising  a  presumption,  &c.,  the  time  elapsed  since  the  20th 
day  of  May,  which  was  in  the  year  1861,  or  which  may  elapse 
until  the  end  of  the  war,  shall  be  excluded  from  the  compu- 
tation,    Ibid. 

39.  In  an  application  to  sell  land  for  the  payment  of  debts 
by  an  administrator  debonisnon,  with  the  will  annexed,  when 
it  appears  that  the  first  executor  assented  to  and  paid  the 
legacies  of  the  testator's  personal  property,  without  paying 
the  debts,  and  that  such  executor  had  given  a  boud  for  the 
faithful  administration  of  the  assets  of  his  testator,  one  of  the 
sureties  on  said  bond  being  at  the  time  of  the  application  sol- 
vent, and  that  the  personal  property  left  by  the  testator  was 


196  EXECUTORS  AND  ADMINISTRATORS— XII. 

sufficient  to  pay  his  debts ;  held,  that  the  administrator  de 
bonis  non,  &c.,  must  first  sue  on  the  bond  of  the  executor 
before  he  can  obtain  a  license  to  sell  the  real  estate,  and  that 
the  order  directing  a  sale  at  that  time  was  erroneous.  Carl- 
ton v.  Byers,  70  N.  0.  R.  691. 

See  (Trusts  and  Trustees,  20,  21.)  (Widow— Of  her 
Dower,  15,  10,  34.) 

XII.     OF  THE  LIABILITY  TO  CREDITORS,  &c. 

1.  An  administrator  is  not  bound  to  follow  the  assets  of 
his  intestate  into  another  State  ;  but  he  should  hold  the  per- 
sons in  whose  hands  such  assets  are  to  au  account  for  them, 
if  they  prefer  a  claim  against  the  estate  in  his  hands.  Colson 
v.  Martin,  Phil.  Eq.  R.  125. 

2.  Courts  of  Equity  in  this  State  will  not  entertain  juris- 
diction of  a  bill  against  an  executor  or  administrator  to  en- 
force payment  of  a  legal  demand  at  the  suit  of  a  single  credi- 
tor; and  upon  demurrer  such  a  bill  will  be  dismissed.  Wil- 
Mns  v.  Finch,  Phil.  Eq.  R.  335.  S.  P.  Miller  v.  Moor,  Phil. 
Eq.  R.  359. 

3.  A  creditor  cannot,  merely  as  such,  sustain  a  bill  against 
an  executor,  seeking  to  have  his  debt  paid.     Ibid 

4.  Upon  the  death  of  a  non-resident,  intestate,  leaving  as- 
sets in  this  State,  they  are  to  be  applied  to  the  payment  of 
the  claims  of  his  resident  creditors,  if  there  be  any  such,  in 
the  order  prescribed  by  our  law,  and  not  by  that  of  his  domi- 
cil.     Carson  v.  Oates,  G4  N.  C.  R.  115. 

5.  Such  assets  are  to  be  collected,  by  an  administrator  ap- 
pointed here,  and  not  by  the  creditors.     Ibid. 

6.  The  "  Supplemental  proceedings,"  under  the  C  C.  P., 
Title  XI,  eh.  2,  do  not  apply  to  such  a  case,  but  are  intended 
to  supply  the  place  of  the  former  proceedings  in  Equity  where 
relief  was  given  after  a  creditor  had  recovered  a  judgment  at 
law,  and  was  unable  to  obtain  satisfaction  under  further  legal 
process.  Where  one  who  is  charged  in  Supplemental  proceed- 
ings as  holding  property  belonging  to  a  judgment  debtor, 
claims  such  property  as  his  own,  the  question  cannot  be  de- 
cided in  the  course  of  such  proceedings,  but  must  be  settled 
by  an  action.     Ibid. 

7.  Whether  an  account  in  the  handwriting  of  the  party 
charged,  under  a  heading  in  the  same  handwriting,  showing 
that  it  was  an  account  of  one  partner's  indebtedness  to  the 
firm,  entered  upon  the  partnership  books,  be  a  signed  account, 
within  the  statute  heretofore  prescribing  the  degrees  of  de- 


EXECUTORS  AXD  ADMINISTRATORS.— XII   197 

ceased  person's  debts,  Qucere? — but  at  all  events  it  is  no  set- 
tled account  showing  the  partner's  indebtedness  to  his  co-part- 
ner, but  is  merely  an  item  in  the  general  settlement  of  their 
dealings  in  that  connexion.  Furman  v.  Moore,  64  X.  C.  R. 
358. 

8.  An  administrator,  under  oar  former  system,  had  no 
right  to  retain  a  debt  of  lower  dignity  within  the  nine  months 
given  him  to  plead,  upon  the  ground  that  he  had  no  notice  of 
debts  of  higher  dignity.     Ibid 

9.  Where  an  executor  defendant  at  Spring  Term,  1867, 
had  pleaded  fully  administered,  and  a  reference  had  been  had 
under  such  plea,  and  a  report  made  charging  him  with  assets : 
held,  that  the  court  had  no  power  at  a  subsequent  term,  in 
May,  1870,  to  allow  the  defendant  to  strike  out  such  plea, 
and  to  plead  anew.     Wright  v.  F tanner,  64  X.  0.  R.  510. 

10  Where  the  testator  (dying  in  186-3)  was  debtor,  as 
surety  for  a  principal  solvent  until  the  emancipation,  and  his 
personal  property  consisted  of  seventeen  slaves  bequeath  (1 
to  the  persons  named  as  executors,  which  he  had  before 
placed  in  their  possession,  and  which  remained  there  until 
they  were  emancipated :  held,  that  a  creditor,  who  did  not 
present  her  claim,  but  who  was  unwilling  to  receive  Confed- 
erate currency  for  it,  could  not  charge  the  executors  with 
laches  in  not  selling  such  slaves  for  payment  of  debts, — even 
in  a  case  where  they  had  not  advertised  for  creditors  to  pre- 
sent their  claims,  as  required  by  statute.  Fike  v.  Green,  64 
X.  C.  R.  665. 

11.  Executors  are  not  chargeable  with  land  as  assets. 
Ibid. 

12.  Where  the  testator  had  died  in  Xovember,  I860,  and  his 
estate  was  afterwards  rendered  insolvent  by  the  results  of 
the  war:  held,  that  the  executors  were  not  chargeable  with 
Confederate  money,  which,  upon  its  refusal  by  the  creditors 
of  the  estate,  they  had  divided  amongst  the  legatees,  without 
taking  refunding  bonds;  nor,  with  the  value  of  the  slaves 
which  they  had  allowed  the  legatees  to  take,  or  to  retain  ; 
hut  they  were  chargeable  with  the  value  of  the  other  personal 
property,  so  taken  or  retained  ;  nor,  with  the  Confederate 
money  and  bonds,  and  X.  C.  Treasury  notes,  remaining  in 
the  hands  of  the  executors;  nor,  with  the  value  of  personal 
property  sold  by  them  in  November,  1863,  for  Confederate 
money.     State,  &c.t  v.  Hanner,  64  X.  C.  R.  668. 

13.  Where  land  was  sold  under  execution  for  a  debt  due 
to  the  testator,  and  his  executors  purchased  it,  paying  for  it 
with  the  debt,  and  taking  title  to  themselves  :  held,  that  it 


198  EXECUTOES  AND  ADMIXISTEATOES— XII. 

was  optional  with  the  creditors  of  the  estate  to  charge  them 
with  the  debt,  or  with  the  laud.     Ibid. 

14.  An  executor  of  a  creditor  is  not  required  to  admin- 
ister upon  the  estate  of  a  deceased  debtor.     Ibid. 

15.  After  the  institution  of  a  suit  against  them  by  a  cred- 
itor, (here,  in  February  1868,)  executors  have  a  right,  under 
the  act  of  1866-'7,  c.  59,  to  pay  other  debts,  without  a  judg- 
ment.    Ibid. 

l(j.  In  a  case  where  the  creditors  of  an  estate  refused  to 
receive  Confederate  money  for  their  debts,  it  was  held  that 
the  executor  was  not  chargeable  for  failing  to  sell  slaves  which 
came  into  his  hands  in  May,  1803,  and  afterwards  lost  by 
emancipation ;  but  that  he  was  chargable  as  for  the  subse- 
quent hires  of  such  slaves.  Womble  v.  George,  64  X.  C.  E. 
576. 

17  An  executor  is  not  chargeable  with  the  reuts  and  prof- 
its of  the  realty.     Ibid. 

.18.  He  is  not  to  be  credited  with  sums  paid  for  taxes  due 
upon  the  land  after  the  testator's  death;  nor  with  money 
advanced  to  procure  supplies  for  the  widow  and  her  family 
after  her  husband's  death.     Ibid. 

19.  An  administrator  is  guilty  of  gross  laches  who  sells 
property  ou  a  credit,  and  takes  no  other  security  than  the 
bond  of  the  purchaser.     Boaeman  v.  Pless,  65  X.  0.  E.  374. 

20.  Under  the  act  of  1868-'!),  ch.  134,  sub  ch.  4,  sec,  24, 
explained  by  the  act  of  1869-'70,  ch.  58,  an  executor  who  has 
taken  out  letters  testamentary  since  the  1st  of  July,  1869, 
must  pay  all  the  debts  due  from  the  estate  of  his  testator  pro 
rata,  according  to  their  classes  ;  and  the  testator  cannot  give 
to  a  debt  a  preference  over  other  debts  of  the  same  class  by 
a  bequest  of  it  to  the  creditor.  Moore  v.  Byers,  65  X.  C  E. 
240. 

21.  Au  administrator,  whose  sale  of  the  personal  property 
of  his  intestate  has  been,  after  due  public  notice,  conducted 
fairly  and  without  any  connivance  with  the  widow,  shall  not 
be  held  responsible  because  of  her  having  purchased  many 
articles  at  a  nominal  or  very  low  price  on  account  of  the  by- 
standers forbearing  to  bid  against  her.  Woody  v.  Smith,  65 
X.  C.  E,  416. 

22.  If  an  administrator  has  properly  sold  a  horse,  belong- 
ing to  the  estate  of  his  intestate  and  taken  a  note  therefor, 
lie  may  nevertheless  rescind  the  sale  and  take  back  the  horse, 
provided  he  does  it  bona  fide  because  he  suspects  the  solvency 
of  the  parties  to  the  note,  but  in  such  case  he  must  sell  the 
horse  again'  immediately,  or  he  will  be  held  liable  for  his  value. 


EXECUTORS  AND  ADMINISTRATORS— XII.  199 

at  the  time  ;  and  lie  must,  if  lie  can,  collect  from  the  first 
purchaser  what  the  use  of  the  horse  was  worth  to  him  while 
in  his  possession,  or  be  held  liable  for  that  also.  Bland  v. 
Hartsoe,  Go  N.  0.  R.  204. 

23.  Au  administrator  will  not  be  allowed  to  retain  out  of 
the  assets  of  his  intestate,  a  note  payable  to  him  as  guardian 
where  his  intestate  is  surety,  when  he  has  paid  over  to  the 
principal  of  said  note,  who  was  insolvent,  a  claim  on  his  intes- 
tate for  a  sum  more  than  sufficient  to  have  paid  off  and  dis- 
charged the  indebtedness  of  the  principal.  Redman  v.  Turn- 
er, 65  N.  0.  R  445. 

24.  After  a  judgment  fixing  an  executor  with  assets,  and 
a  return  of  an  execution  issued  thereon,  nulla  bona,  the  pro- 
per mode  to  subject  such  executor  personally,  is  by  motion 
founded  on  notice  and  not  by  civil  action.  McDowell  v.  As- 
buru,  66  X.  0.  R.  444. 

25.  Writs  of  scire  facias  consisted  of  two  classes,  the  ob- 
ject of  the  first  class  being  to  remedy  defects  in,  or  to  con- 
tinue an  action  ;  that  of  the  second  class  to  commence  some 
proceeding.     Ibid. 

2G.  Proceedings  in  the  nature  of  a  sci.  fa.,  of  the  first 
class,  are  almost  indispensable  in  the  administration  of  jus- 
tice, and  the  object  of  the  Code  was  merely  to  abolish  the 
name  and  form  of  writs  of  this  class,  and  simplify  the  process 
into  a  notice  or  summons,  to  show  cause  why  further  preceed- 
ings  should  not  be  had  to  provide  further  relief,  in  matters 
where  parties  had  had  a  day  in  Court,  &c ,  and  not  to  effect 
the  substance  of  the  remedy.     Ibid. 

27.  On  such  motion,  the  Judge  may  allow  the  defendant 
to  make  any  defence  which  he  could  have  availed  himself  of, 
under  the  old  scire  facias  proceeding.     Ibid. 

28.  The  form  of  pleading  and  practice  to  be  pursued  in 
order  to  subject  executors  and  administrators  personally,  un- 
der the  former  system,  elucidated  by  Dick,  J.     Ibid. 

29  If  a  simple-contract  creditor  receives  payment  of  the 
executor,  a  bond-creditor  cannot  afterwards,  either  at  law  or 
in  equity,  compel  the  simple  contract  creditor  to  refund,  for 
both  are  creditors,  and  tfie  creditor  first  paid,  may,  with  good 
■  conscience,  retain  the  money,  and  leave  the  bond-creditor  to 
iiis  action  as  for  a  devastavit.  WItitted  vj&ash,  GO  N.  C. 
R.  590.  ^ 

30.  Xor  is  this  principle  varied  by  the  receipt  of  property 
in  satisfaction    instead  of  money:  Provided,  the   property  is 

)a-n  at  a  full  price,  bona  fide,  and,  without  notice  that  the 


200  EXECUTORS  AND  ADMINISTRATORS— XII. 

executor  is  contriving  to  defeat  the  priority  of  the  bond- 
creditor.     Ibid. 

31.  The  daughter  of  a  decedent  being  very  solicitous  to 
cause  his  debts  to  be  paid,  on  being  assured  by  the  executor 
that  her  own  and  his  (the  executor's)  debts  are  the  only  ones 
outstanding,  buys  from  the  executor  certain  property,  and 
executes  her  notes  to  certain  persons,  creditors  of  the  execu- 
tor, and  it  afterwards  appears  that  the  testator  owed  other 
persons :  held,  that  these  facts  warrant  a  rescission  of  the 
transaction.    IMd. 

32.  In  the  case  above  stated,  our  courts  having  refused 
to  adopt  the  doctrine  of  the  English  Courts,  by  which  a 
purchaser  from  a  fiduciary  is  compelled  to  see  toihe  applica- 
tion of  the  purchase  money — had  the  purchase  money  been 
paid,  the  purchaser  would  have  been  protected  in  her  title, 
but  as  the  purchase  money  had  not  been  paid,  the  fund  will 
be  arrested  and  applied  in  a  due  course  of  administration. 
Ibid. 

33.  In  administrations  granted  prior  to  1st  July,  1861), 
the  creditor  who  first  proceeds  upon  his  judgment  quandor 
and  fixes  the  administrator  with  assets,  must  first  be  paid, 
without  any  regard  to  priority  of  judgments.  McLean  v. 
Leach,  68  N.  C.  R.  95. 

34.  Letters  of  administration  granted  to  one  in  1865,  who 
is  removed  in  the  Fall  of  1869,  and  another  appointed  in  his 
place,  are  governed  by  the  law  as  it  was  prior  to  July,  1869. 
Dancy  v.  Pope,  68  N.  C.  R.  149. 

35.  An  absolute  judgment  is  a  lien  not  only  upon  the 
assets  in  hand,  but  also  upon  such  assets  as  may  come  in 
hand  after  its  rendition.  It  is  a  lien  upon  the  estate  of  the 
deceased  debtor,  and  must  be  first  paid  according  to  the  date 
of  the  judgments  respectively.     Ibid. 

36.  Quando  judgments  are  to  be  paid  in  the  second  in- 
stance out  of  the  fund,  according  to  the  date  of  the  judg- 
ments respectively;  quando  judgments  on  specialties  taking 
preference  of  those  obtained  on  simple  contract  debts.    Ibid. 

37.  A  decree  in  equity  declaring  a  debt,  and  held  for 
"further  directions,"  is  to  all  intents  and  purposes  a  quando 
judgment  and  entitled  to  the  same  status  in  the  distribution 
of  assets.     Ibid. 

38.  The  personal  estate  in  the  hands  of  an  administrator 
constitutes  the  primary  fund  for  the  payment  of  the  debts  of 
the  intestate.  By  an  Act  of  Assembly,  1846,  the  lands  of 
the  intestate  is  a  secondary  fund,  liable  only  to  be  used  in 


EXECUTORS  AXD  ADMINISTRATORS— XII.  201 

the  payment  of  debts  when  the  primary  fund  is  exhausted. 
Hinton  v.  Whitehurst,  68  N.  0.  R.  316. 

3D.  As  a  general  rule,  the  creditors  of  an  ancestor  are 
entitled  to  all  the  rents  aud  profits  received  by  the  heirs  since 
the  descent  cast.  If,  however,  the  heirs  are  infants,  and 
the  guardian  has  expended  the  rents  and  profits,  or  auy 
portion  thereof,  in  the  necessary  maintenance  aud  support  of 
the  heirs,  only  that  portion  unexpended  belongs  to  the  cred- 
itors     Moore  v.  Shields,  68  N.  0.  R.  327. 

40.  A  fund,  iu  the  hands  of  a  Commissioner  of  the  court, 
in  the  nature  of  rents  and  profits,  which  fund  originated  iu  a 
compromise  of  a  certain  suit  in  equity,  against  the  purchaser 
ot  laud  sold  by  order  of  the  court,  and  which  sale,  by  the 
terms  of  the  compromise,  was  rescinded,  belongs  to  the 
administrator  aud  its  assets  for  the  payment  of  debts,  subject 
to  the  exception  in  favor  the  heirs  being  allowed  necessary 
maintenance  therefrom.     1  bid. 

41.  Where  an  administrator  sold  the  effects  of  his  intes- 
tate in  1862,  and  took  as  surety  to  the  note  given  by  a  pur- 
chaser, a  person  who  lived  and  had  all  his  property  in  Mis- 
sissippi, it  was  held,  that  the  administrator  was  not  to  be 
responsible  therefor,  if  such  surety  was  undoubtedly  good  for 
the  debt  when  he  was  taken,  though  he  became  insolvent 
afterwards  by  the  result  of  the  late  war.  Shields  v.  Jones,  OS 
N.  C.  R,  488. 

42  In  a  creditor's  bill  against  an  administrator,  when  it 
is  found  upon  a  reference  to  ascertain  the  debts,  that  the  fund 
is  sufficient  to  pay  such  debts,  a  judgment  against  the  admin- 
istrator, on  the  admission  of  a  debt,  is  taken  in  full  proof;  for 
the  reason  that  the  other  creditors  are  not  interested  in  the 
matter.     Overman  v.  Grier,  70  N.  C.  R.  003. 

43.  On  the  contrary,  when  the  fund  is  not  sufficient  to 
pay  the  debts,  each  creditor  is  allowed  to  dispute  the  debt  of 
any  otner,  and  the  debt  of  such  other  creditor  must  be  proved 
de  novo  before  the  referee  ;  for  in  such  case  the  creditors  have 
a  direct  interest  in  the  question,  debt  or  no  debt,  inasmuch 
us  its  allowance  will  diminish  the  fund  pro  tanto.     Hid. 

44.  The  maker  of  a  promissory  note,  being  indebted  to  A, 
made  it  payable  and  delivered  it  to  B  and  0,  administrators 
for  the  purpose  that  the  amount  of  the  note  might  be  credi- 
ted on  a  claim  due  their  intestate  from  A  :  held,  that  the 
acceptance  of  the  note  by  B  and  O,  although  they  refused  to 
credit  A  with  the  amount,  enured  to  his,  A's  benefit,  and 
that  he  had  a  right  to  hold  the  makers  responsible  for  the 
amount.     Ibid. 


202  EXECUTORS  AND  ADMINISTRATORS— XIII. 

XIII.     OF  THEIR  LIABILITY  TO  LEGATEES  AND  NEXT  OF  KIN. 

1.  An  administrator,  who  delivers  the  residue  of  an  estate 
to  the  distributees,  has  no  equity  to  call  upon  them  to  refund 
the  amount  of  a  debt  paid  by  him  afterwards,  of  which  he 
had  no  notice  at  the  time  he  delivered  up  the  residue,  unless 
he  alleges  and  proves  special  circumstances  showing  that  he 
was  in  no  default,  and  relieving  him  from  the  imputation  of 
negligence.     Donne&l  v.  Cooke,  63  X.  0.  R.  227. 

2.  Where  the  case  showed  that  the  plaintiff  knew  at  the 
time,  that  his  intestate  had  been  administrator  as  well  as 
guardian  of  a  certain  estate,  and  that  notes  due  to  him  as 
administrator  were  still  outstanding;  and  in  excuse  of  his 
ignorance  of  the  existence  of  a  debt  of  some  $1,400  due  by 
his  intestate  to  such  estate,  he  relied  upon  the  fact  that  the 
Court  records  showed  a  settlement  by  the  guardian,  (such 
settlement  including  only  the  proceeds  of  a  tract  of  laud  and 
a  small  amount  of- rest:)  held,  especially  as  the  records  show- 
ed no  settlement  by  the  administrator,  to  have  been  gross 
negligence  in  him  to  pay  over  the  residue  to  the  distributees. 
lUd. 

3.  If  an  executor  or  administrator  refuse  to  bring  an  ac- 
tion to  surcharge  and  falsify  an  account  by  which  his  testa- 
tor's or  intestate's  estate  has  been  injured,  such  action  may  be 
brought  by  the  legatees  or  next  of  kin,  and  in  doiug  so,  they 
should  make  the  executor  or  administrator  a  party  defendant 
together  with  the  other  defendant.  Murphy  v.  Harrison, 
65  X.  C.  R.  246. 

4.  Where  a  testator  was  the  surety  for  his  sou  in  an 
amount  greater  than  the  value  of  said  son's  interest  in  said 
estate:  held,  that  the  son  is  not  entitled  to  recover  from  the 
Executors  of  his  father  his  distributive  share  of  said  estate, 
although  the  Executors  of  the  father  do  not  pay  off  the  sure- 
ty debt  till  after  action  brought  by  the  son.  liamsour  v. 
Ramsour,  65  N.  C.  R.  628 

5.  A.  father  is  bound  to  support  his  children  if  he  has  abil- 
ity to  do  so,  whether  they  have  property  or  not,  and  he  is  not 
entitled  to  any  credit  for  such  support,  in  a  settlement  of  ac- 
counts between  them  and  himself.  Hagler  v.  McCombs,  66 
X.  C.  R.  3*5. 

6.  In  an  action  for  an  account,  against  an  executor,  the 
personal  representative,  and  not  the  children  of  a  deceased 
legatee,  should  be  made  a  party.     Ibid. 

7.  A  testator  who  died,  1864,  gave  the  bulk  of  his  real 
and  personal  estate  to  three  sisters,  equally  to  be  divided 


EXECUTORS  AND  ADMINISTRATORS— XIII.  203 

ttetween  them,  and  directed  his  executor  to  sell  on  twelve 
months'  credit.  The  sale  was  made  in  November,  1804;  the 
husbands  of  two  of  the  sisters,  one  of  whom  was  the  guardian 
of  the  third,  bought  most  of  the  property,  a  negro  and  a  few 
articles  of  personal  property  being  bought  for  the  ward.  By 
agreement,  instead  of  giving  their  notes,  they  gave  receipts 
to  the  executor  for  the  amounts  of  their  respective  purchases 
in  part  of  their  wives'  shares,  and,  at  the  same  time,  the 
executor  passed  over  to  one  of  them,  whose  purchases  were 
less  in  value  than  the  others,  a  considerable  amount  of  solv- 
ent notes  given  to  the  testator,  some  before  the  war :  held, 
that  notwithstanding  there  was  no  inteut  on  the  part  of  the 
executor  and  said  purchasers  to  defraud  the  infant  sister,  as 
the  departure  fVom  the  directions  in  the  will,  as  to  sale  on 
credit,  resulted  in  her  loss,  she  is  entitled  now  to  be  put  in 
the  situation  she  would  have  occupied  had  said  directions 
been  carried  out  literally,  and  to  have  an  equal  division  of  the 
testators.     MvLartyv.  Brown,  67  N.  0.  R.  311. 

8.  In  such  case,  receipts  given  by  the  ward,  soon  after 
she  became  of  age,  for  the  amount  of  her  purchases  at  the 
sale,  and  for  her  share  of  confederate  money,  received  on  the 
day  of  sale,  will  not  have  the  effect  to  ratify  the  said  deal- 
ings with  the  estate.     Ibid.        . 

9.  A  sale  by  an  executor  in  November,  1S64,  of  lands, 
farming  utensils,  &c,  directed  to  be  sold  on  twelve  months' 
credit  for  Confederate  money,  is  not  an  exercise  of  due  pru- 
dence.    1  bid 

10.  An  executor,  who  surrenders  upon  the  request  of  the 
surety,  a  bond  for  which  the  principal  and  such  surety  are 
bound,  and  takes  in  lieu  thereof  the  individual  bond  of  such 
surety  unsecured,  makes  himself  personally  responsible  for 
the  payment  of  the  bond,  or  such  portion  thereof  as  remains 
unpaid.     Camp  v.  Smith,  68  N.  L.  R.  537. 

11.  That  a  defendant,  an  administrator,  did  not  attempt 
to  collect  a  debt  for  more  than  eighteen  months  after  it  fell 
due,  does  not  warrant  the  legal  inference  of  a  want  of  due 
diligence  on  his  part,  without  a  finding  of  the  further  fact, 
that  the  obligors  were  men  in  failing  circumstances,  so  as  to 
call  lor  active  diligence  in  the  collection,  or  that  the  condition 
of  the  estate  required  immediate  collection,  in  order  to  pay 
off  pressing  demands  and  save  costs.  Keener  v.  Finger,  70 
N.  C.  R.  35. 

12.  Nor  does  it  amount  to  a  want  of  due  diligence,  that 
the  defendant  caused  a  levy  to  be  held  up  for  three  years  al- 
ter judgment,  and  then  directed  the  execution  to  one  of  the 


204  EXECUTORS,  &c— XIII.— XIV. 

defendants  therein,  which  was  not  kept  up  and  perfected  as  a 
lien,  unless  it  is  also  found  that  it  was  for  the  interest  of  the 
trust  fund,  that  the  debt  should  have  been  collected  in  18G3- 
'04,  iu  Confederate  money,  or  else  that  the  circumstances 
were  such  that  the  defendant  should  have  taken  upon  him- 
self the  odium  of  demanding  specie,  or  that  the  defendant  in 
the  exercise  of  due  diligence,  should  have  foreseen  the  tact 
that  at  the  close  of  the  war,  there  was  to  be  a  military  order 
forbidding  the  collection  ot  old  debts  contracted  for  the  pur- 
chase of  slaves.     Ibid. 

13.  In  a  suit  to  recover  a  distributive  share  in  an  intes- 
tate's estate,  it  is  not  necessary  to  prove  that  the  person  pay- 
ing such  share  to  the  agent  of  the  distributee  was,  at  the  time, 
rightful  Administrator;  and  evidence  to  prove  that  such  per- 
son paid  the  distribute  share  to  the  agent,  is  clearly  admissi- 
ble.    Neighbors  v.  Jordan,  70  X  C.  R.  406. 

14.  Docketed  judgments  in  force  against  the  estate  of  a 
decedent,  has  priority  of  payment  over  other  debts  to  the  ex- 
tent of  the  lien  which  such  judgment  has  on  the  real  estate. 
If  the  real  estate  is  more  than  enough  to  pay  the  judgment, 
then  the  whole  thereof  has  priority  over  other  debts;  if  the 
real  estate  is  only  sufficient  to  pay  part  of  the  judgment,  then 
the  priority  is  measured  by  the  value  of  such  real  estate. 
Jenkins  v.  Carter,  70  X  C.  R.  500. 

See  (Confederate  money,  11,  16,  17,  IS,  21.)  (Public 
Law,  25 ) 

XIV.     DISTRIBUTION  AND  ADVANCEMENTS. 

1.  A  conveyance  of  laud  to  a  son-in-law  is  not  to  be  reck- 
oned as  an  advancement  to  the  daughter,  who  at  the  death 
of  her  father  is  married  to  a  second  husband.  Banks  v. 
Shannonhouse,  Phil  L.  R.  284. 

2.  A  gift  of  slaves  accompanied  by  a  warranty  of  the  title 
forever,  (made  some  years  before  the  late  war,)  continues  an 
advancement  of  the  value  of  them  when  given,  without  refer- 
ence to  their  subsequent  emancipation  by  the  results  of  the 
late  war.     Ibid. 

3.  When  a  father  is  indebted  to  his  children,  and  gives 
them  property  or  money  at  their  maturity  or  marriage,  the 
presumption  is  that  this  is  a  payment  of  the  debts  and  not 
an  advancement.  This  presumption,  however,  is  liable  to  be 
rebutted  bv  the  facts  in  the  case.  Hagler  v.  McCombs,  GO 
X.  C.  R.  315. 

4.  If  monev  is  given  to  a  son-in-law,  under  similar  cir- 


EXECUTORS,  &c.— XV.— XVI— EXTRADITION.  205 

cumstanees,  or  paid  by  the  father-in-law,  as  surety,  the  same 
rule  applies.     Ibid. 

5.  If  a  father  while  acting  as  executor,  receives  into  his 
possession  a  number  ot  slaves  bequeathed  to  his  children, 
and  afterwards  sells  one  of  them,  and  retains  and  controls  the 
others  until  their  emancipation ;  held,  that  in  an  action  for 
the  hire  of  said  slaves,  &c ,  it  shall  be  determined,  as  a  fact, 
whether  he  converted,  or  intended  to  convert,  the  slaves  to 
his  own  use,  or  whether  he  held  them  as  trustee  or  bailee  for 
his  children.  If  the  former,  a  debt  is  established,  and  the 
presumption  above  referred  to  applies — otherwise  it  does  not. 
Ibid. 

XV.     REFUNDING  BONDS. 

When  an  administrator  two  years  after  his  qualification 
delivers  certain  slaves,  the  only  personal  estate  of  his  intes- 
tate, to  the  next  of  kin,  and  took  from  them  refunding  bonds, 
and  in  a  suit  against  the  administrator  and  heii  s-at-law  among 
whom  the  lands  of  the  intestate  had  been  divided,  upon  an 
old  judgment:  held,  that  by  the  emancipation  of  the  slaves 
by  the  sovereign  the  condition  of  the  refunding  bonds  were 
tulfilled,  and  that  the  lands  were  subject  to  the  payment  of 
the  plaintiff's  debt.     H'uiton  v.  Whitehurst,  68  X.  0.  R.  316. 


XVI.    COMMISSIONS. 


A  trustee  is  generally  entitled  to  commissions,  but  when  a 
person  is  trustee  by  reason  of  his  being  executor,  and  volun- 
tarily assumes  control  of  a  fund  willed  to  minor  children,  he 
not  being  their  guardian,  he  is  not  entitled  to  commissions. 
Hagler  v.  McCombs,  66  N.  0.  R.  345. 


EXTRADITION. 

1.  The  clause  in  the  Constitution  of  the  United  States 
requiring  that  fugitives  from  justice  charged  with  treason, 
felony  or  other  crime,  shall  be  delivered  up,  &c,  is  to  be 
construed  so  as  to  include  acts  made  criminal  by  amendments 
in  the  laws  of  the  several  States,  and  is  not  to  be  limited  to 
such  only  as  are  crimes  at  common  law.  Li  the  matter  of 
Hughes,  Phil.  L.  R.  58. 

2.  Where  the  prisoner  had  already  once  been  delivered 
up  by  the  Governor  for  the  crime  in  question,  and  thereupon 


206       FACTOR— FALSE  TOKENS.— FENCES. 

having  been  allowed  bail  forfeited  his  boud,  and  was  again  a 
fugitive :  held,  that  it  was  clearly  within  the  power  of  the 
Governor  to  order  a  second  arrest  and  surrender.     Ibid. 


FACTOR. 
See  (Agent  and  Principal — Factors.) 


FALSE  TOKENS. 

1.  To  sustain  an  indictment  for  obtaining  goods  by  a  false 
pretense,  under  our  Statute,  liev.  Code,  ch.  34,  sec.  07,  there 
must  be  a  false  representation  of  a  subsisting  tact,  calculated 
to  deceive,  and  which  does  deceive,  whether  the  representa- 
tion be  in  writing,  or  in  words,  or  in  facts,  by  which  the  de- 
fendant obtains  something  of  value  from  another  without 
compensation.  But  this  does  not  extend  to  what  are  called 
li  mere  tricks  of  trade  "  by  which  a  man  puffs  his  goods.  State 
v.  Phifer,  65  N.  C.  R  321. 

2.  The  doctrine  of  cheating  by  false  tokens  at  the  com- 
mon law  and  under  the  Statute  of  Henry  VIII.  and  by  false 
pretences  under  the  Statutes  of  30,  George  II.  ch.  24,  and 
our  Act,  discussed  and  explained.     Ibid. 

3.  The  defendant  sold  to  the  prosecutor  four  barrels  of 
crude  turpentine,  representing  "that  they  were  all  right,  just 
as  good  at  bottom  as  they  were  at  top,"  &c,  and  when  ex- 
amined, the  barrels  coutained  only  a  small  quantity  of  tur- 
pentine ou  the  top  of  each,  the  rest  of  the  contents  being 
chips  and  dirt :  held,  that  the  defendant  was  guilty  of  cheat- 
ing by  false  tokens.     State  v.  Jones,  70  N.  C.  R  75. 


FENCES. 

1.  A  u  pasture-field"'  is  not  "cleared  ground  under  culti- 
vation,'''' within  the  meaning  of  the  Statute,  (lie v.  Code,  ch. 
48,  sec.  1,)  requiring  planters  to  keep  around  such  ground  a 
fence  at  least  five  feet  high.     State  v.  Perry,  (54  N.  C.  li.  305. 

2.  Under  the  statute  requiring  "  every  planter  to  make  a 
sufficient  fence  about  his  cleared  ground  under  cultivation," 


FENCES.— FERRY.— FIXTURES.  207 

&c,  it  is  not  the  intention  of  the  Legislature  to  visit  with 
pains  and  penalties  mere  hirelings  and  laborers  on  farms  who 
work  by  direction  of  their  employers,  and  have  no  discretion 
to  originate  plans  of  their  own  or  to  change  those  oi  their 
employers.     State  v.  Taylor,  69  X.  0.  R.  543. 

.').  Xor  does  the  act  include  a  simple  employee,  with  no 
more  discretion  as  to  the  management  of  the  farm  than  is 
usually  vested  in  those  persons  whom  planters  designate  as 
"  foremen,"  whose  office  is  to  keep  things  moving  in  the  direc- 
tion indicated  by  the  employer ;  and  the  fact  that  such  em- 
ployee receives  his  wages  out  of  the  crop  does  not  change  the 
principle,  for  that  with  fanners  is  a  common  mode  of  paying 
their  hands.     Ibid. 


FERRY. 

1.  Under  the  act  of  1813,  the  county,  courts  had  no 
authority  to  make  an  irrevocable  grant  of  an  exclusive  ferry. 
Harrington  v.  Neuse  River  Ferry  Company,  09  N.  C.  R.  105. 

2.  And  the  General  Assembly,  by  its  act  of  1872,  gran- 
ting to  a  company  the  privilege  of  establishing  a  ferry,  with- 
in two  miles  of  another  which  had  been  used  for  over  40 
years,  did  not  divest  any  vested  right  belonging  to  the  owner 
of  such  old  ferry.     Ibid. 

3.  Article  8,  sec.  2,  of  the  Constitution,  giving  to  the 
commissioners  of  counties  a  general  supervision  aud  control 
over  schools,  roads,  bridges,  &c,  does  not  deprive  the  Legis- 
lature of  the  power  of  special  legislation  over  these  subjects. 
Ibid. 

4.  The  Legislature,  under  its  right  of  eminent  domain, 
has  the  power  to  grant  the  franchise  of  a  ferry  to  any  one, 
and  to  authorize  the  condemnation  of  the  land  of  a  riparian 
owner  as  a  landing  place.     Ibid. 


FIXTURES. 

1.  A  whiskey  still  was  hired  for  the  season  to  parties  who 
set  it  up,  encased  in  masonry,  upon  the  lands  of  one  of  them ; 
dining  the  season,  it  was  sold  by  the  owner  to  the  plaintiff; 
shortly  afterwards  it  was  levied  upon,  and,  after  the  close  of 
the  season,  and  whilst  it  was  still  encased  as  above,  was  sold, 


203         FIXTURES  —FORCIBLE  TRESPASS. 

by  one  of  the  defendants  as  a  constable,  at  the  instance  of 
the  other  (who  became  purchaser,)  under  a  judgment  against 
the  former  owner :  held,  that  the  defendants  were  liable  to 
the  plaintiff  in  an  action  of  trover;  that  the  doctrine  of  fix- 
tures had  no  application,  under  the  circumstances.  Feim- 
ster  v.  Johnson,  64  N.  0  R.  259. 

2.  Where  the  owner  of  the  inheritance,  attaches  to  the 
freehold  articles  of  personalty  for  the  better  enjoyment  of  the 
estate,  as  for  instance,  a  cotton  gin,  such  articles  become  a 
part  of  the  realty,  and  pass  to  the  heir,  mortgagee  or  vendee. 
Latham  v.  Blakely,  70  N.  C.  R.  368. 

3.  And  while  an  owner  may  detach  fixtures  and  convert 
them  into  personalty,  yet  he  cannot  do  so  after  an  execution 
has  been  levied  on  the  laud  to  which  they  are  attached.    Ibid. 


FORCIBLE    TRESPASS. 

1.  The  distinction  between  robbery  and  forcible  tres- 
pass is  that  in  the  former  a  felonious  intention  exists,  and  in 
the  latter  it  does  not.     State  v.  Soivls,  Phil.  L.  R.  151. 

2.  By  Pearson,  0.  J.  Forcible  trespass  is  the  taking 
of  the  personal  property  of  another  by  force  ;  robbery,  the 
fraudulent  taking  of  the  personal  property  of  another  by 
force,     ibid. 

3.  Iu  forcible  trespass  it  is  not  necessary  that  the  per- 
son from  whom  the  property  was  taken,  should  have  been 
actually  put  in  fear.     State  v.  Pearman,  Phil.  L.  R.  37  L. 

4.  In  an  indictment  for  forcible  trespass  it  is  sufficient  to 
charge,  that  the  defendant  entered  the  premises  with  a  strong 
hand,  the  prosecutor  being  then  and  there  present.  State  v. 
Buckner,  Phil.  L.  R.  371. 

5.  Where  the  land  on  both  sides  of  a  road,  whether  pub- 
lic or  private,  belongs  to  the  prosecutor,  he  is  the  owner  of 
the  soil  over  which  the  road  runs;  and  persons  who  stop  upon 
such  road  and  use  violent  and  menacing  language  to  him;  are 
guilty  of  a  Forcible  Trespass.     Ibid. 

6.  The  ouly  privilege  which  the  public  have  in  a  public 
road  is  that  of  passing  over  it,  and  those  who  abuse  that  priv- 
ilege become  trespassers  ab  initio,  and  create  a  nuisance. 
Ibid. 

7.  After  conviction  of  a  forcible  trespass,  judgment  will 
not  be  arrested  because  the  indictment  contains  no  allegation 
as  to  the  time  when  the  offence  was  committed.  State  v. 
Caudle,  63  JN.  0.  R.  30. 


FORCIBLE  TRESPASS.  209 

8.  An  indictment  for  tearing  down  a  dwelling  house, 
binder  the  act  in  the  Revised  Code,  ch.  34,  sec.  103,  cannot 
he  supported  by  proof  that  it  was  torn  down  by  the  owner  or 
his  tenant,  though  it  was  occupied  at  the  time  by  a  tenant  at 
sufferance;  but,  if  the  tenant  at  sufferance,  were  present, 
forbidding  the  act  when  the  house  was  torn  down,  an  indict- 
ment for  a  forcible  trespass  might  have  been  supported. 
State  v.  Mace,  05  3ST.  C.  11.  344. 

9.  The  object  of  the  act  of  1865-'66,  entitled  "  An  Act  to 
prevent  willful  trespass  on  lands,"  &c ,  was  to  keep  off  intru- 
ders, and  to  subject  them  to  indictment  if  they  invaded  the 
possession  after  they  had  been  forbidden.  State  v.  Hanks, 
•66  N.  0.  R  012. 

10.  A  forcible  trespass  ''  is  a  high-handed  invasion  of  the 
actual  possession  of  another,"  he  being  present ;  the  title  is 
uot  drawn  in  question.  Where,  therefore,  a  person  who  had 
made  an  entry,  believing  a  tract  of  land  to  be  vacant,  and 
had  procured  a  warrant  of  survey,  and,  under  said  warrant 
•of  survey,  had  entered  upon  the  land  in  the  possession  of 
another:  held,  that  although  the  land  was  not  vacant,  yet 
that  such  person  could  only  be  guilty  of  a  civil  trespass  and 
not  a  forcible  one,  as  above  defined.     Ibid. 

11.  Where  A,  under  a  contract  of  purchase,  claimed  a 
tract  of  laud,  in  the  possession  of,  and  also  claimed  by  B  and 
entered  upon  and  took  temporary  possession  of  a  cabin  on 
the  land,  though  forbidden  by  B  to  do  so:  held,  that  A  was 
not  indictable  under  the  act  of  1805-'0G,  for  a  willful  tres- 
pass.    State  v.  Ellen,  G8  JS".  0.  R.  281. 

12.  To  constitute  the  offence  of  forcible  trespass,  there 
must  be  a  "demonstration  of  force,"  such  as  is  calculated  to 
intimidate,  or  put  in  fear — the  law  not  allowing  its  aid  to  be 
invoked  by  indictment,  for  rudeness  of  language,  or  even 
slight  demonstration  of  force,  against  which  ordinary  firmness 
will  be  sufficient  protection.  State  v.  Covington,  70  N.  (J.  R.  71. 

13.  The  distribution  of  judicial  powers,  by  Art  IV,  of  the 
Constitution,  is  a  virtual  repeal  of  all  laws  giving  jurisdiction 
to  Justices  of  the  Peace  in  case  of  forcible  entry  and  detainer; 
■except  for  the  binding  of  trespassers  to  the  Superior  Court, 
to  answer  a  criminal  charge  ;  therefore,  where  four  or  more 
men  enter  upon  the  premises  in  the  actual  possession  of 
another  by  virtue  of  a  warrant  and  proceedings  before  a 
magistrate,  which  are  a  nullity,  and  eject  such  person  and  his 
family  from  the  house  they  were  occupying,  they  are  guilty 

of  a  forcible  trespass.     State  v.  Yarbo rough,  79  N.  C.  B.  2.30, 
See  i  Bobbery  2,  5,  G.) 
14 


210        FORCIBLE  ENTRY  AND  DETAINER. 


FORCIBLE    ENTRY    AND    DETAINER. 

1.  The  proceedings  for  forcible  entry  aud  detainer  are 
intended  to  be  summary,  and  therefore  no  appeal  is  given. 
Grissett  v.  Smith,  Phil.  L.  R.  1(34. 

2.  Any  one  aggrieved  thereby  may  have  remedy  by  the 
writ  of  recordari,  by  which  the  defendant  may  show  that  the 
justice  was  guilty  of  misconduct  or  irregularity  or  may  have 
the  benefit  of  a  writ  of  false  judgment.    Ibid. 

3.  Where  the   verdict  in  such   proceedings  in  respect  to> 
estate  of  the  plaintiff,   was  ''and  we  the  jurors  do  hereby 
decide  that  the  said  A  S,   plaintiff  and  owner  of  said  houser 
&c,  do  give  him  full  possession  of  t.ie  same;"  held,  that  such 
description  was  insufficient     Ibid. 

4.  No  appeal  lies  from  a  judgment  given  upon  an  inquisition 
before  a  Justice  of  the  Peace,  for  forcible  entry  and  detainer. 
Griffin,  v.  Griffin,  Phil.  L.  R.  167. 

5.  A  defendant  has  no  right  to  claim  that  a  judgment 
shall  suspend  action  upon  a  motion  that  has  been  made  to 
dismiss  such  an  appeal,  in  order  to  allow  him  to  file  a  peti- 
tion and  affidavit  for  writs  of  certiorari,  mandamus  and 
supersedeas.     Ibid. 

6.  Where  upon  recordari  in  the  Superior  Court  it  appears 
that  the  proceedings  in  an  inquisitiou  for  forcible  eutry  and 
detainer  before  a  Justice  of  the  Peace  were  regular,  aud  the 
jury  found  that  the  relators  had  an  estate  in  fee  simple  in  the 
land  and  were  forcibly  ejected  by  the  defendant,  the  writ 
should  be  dismissed.     Little  v.  Martin,  Phil.  L.  R.  240. 

7.  An  indictment  for  forcible  entry  and  detainer  to  be 
good,  must  set  forth  with  plainness  and  certainty,  all  the 
essential  facts  constituting  the  offence;  the  charge  must  be 
explicit  enough  to  support  itself,  for  if  all  the  facts  alleged  in 
the  indictment  may  be  true  and  yet  constitute  no  offence^ 
the  indictment  is  sufficient.     State  v.  Eason,  70  N.  0.  R.  88. 

8.  A  Justice  of  the  Peace  has  no  jurisdiction  of  proceed- 
ings of  forcible  entry  aud  detainer  under  Rev.  Code,  chap.  49. 
Atlantic,  Tennessee  and  Ohio  R.  JR.  Co.  v.  Johnston,  70 
N.  C.  K.  500. 

9.  Whenever  a  party  is  put  of  possession  by  process  of 
law,  and  the  proceedings  are  adjudged  void,  an  order  for  a 
writ  of  restitution,  is  a  part  of  the  judgment,  and  should  be 
made.     Perry  v.  Tapper,  70  N.  0.  R   538. 


FOREIGN  JUDGMENT.— FORGERY.  211 


FOREIGN  JUDGMENT. 

1.  Citizens  of  North  Carolina  who  authorize  a  suit  to  be 
brought  in  Texas,  are  personally  liable  for  the  costs  adjudged 
against  them  upon  their  failure  in  such  suit,  although  they 
may  never  have  been  in  that  State;  and  a  judgment  there- 
for may  be  enforced  in  North  Carolina  as  a  valid  foreign  judg- 
ment.    Walton,  v.  Suffg,  Phil.  L.  B  98. 

2.  In  an  action  upon  a  judgment  given  in  another  State, 
after  it  is  seen  that  the  person  against  whom  such  judgment 
was  given  was  regularly  made  a  party  to  that  suit,  no  ques- 
tion can  be  made  whether  that  court  ought  to  have  rendered 
such  a  judgment;  but  lull  faith  and  credit  must  be  given  to 
it.     Ibid. 


FORGERY. 

1.  In  an  indictment  for  forgery  (upon  a  Statute  which  in- 
cluded all  bonds,)  the  forged  instrument  was  described  as  a 
"certain  bond  and  writing  obligatory,  which  was  placed  as  a 
prosecution  bond  upon  the  process  in  a  suit,  &c,  in  which  M. 
P.  Lytle  was  plaintiff,  and  Mary  L.  Lytle,  defendant,  AYhich 
said  forged  bond  is  as  follows,  that  is  to  say,  "  We  and  each 
of  us  promise  to  pay  the  defendant  in  the  within  petition  all 
such  costs,"  &c;  and  it  appeared  that  such  suit  was  for  di- 
vorce, b}^  husband  against  wife,  and  that  the  bond  had  been 
written  upon  a  paper  which  contained  the  prisoner's  affidavit 
for  instituting  the  suit,  which  paper  was  attached  to  the  peti- 
tion (having  the  Judge's  fiat  endorsed)  by  being  pasted  to  it 
at  one  corner:  held,  that  the  description  of  the  bond,  as 
placed  upon  the  process,  although  unnecessary,  became  mat- 
ter of  substance,  and  in  this  case  was  not  made  out;  that  the 
writing  described  as  a  bond  (being  given  by  husband  to  wile,) 
was  binding  on  no  one  ;  so  that  it  could  not  be  the  subject  of 
forgery.     Slate  v.  Lytle,  G4  N.  C.  R.  255. 

2.  To  constitute  an  "  order  for  the  delivery  of  goods," 
within  the  meaning  of  Rev.  Code,  oh.  34,  sec.  59,  a  forgery, 
there  must  appear  to  be  a  drawer,  a  person  drawn  upon,  who* 
is  under  obligation  to  obey,  and  there  must  appear  to  be  a 
person  to  whom  the  goods  are  to  be  delivered.  State  v.  Lamb, 
<;•">  X.  C.  R.  41  J). 

3.  If  the  paper  writing  set  forth  in  the  indictment  as  a 


212  FORGERY.— FORNICATION  AND  ADULTERY. 

forgery  does  not  contain  these  requisites,  there  cannot  be  a 
conviction  for  forgery  under  such  statute.  Ibid. 
K  4.  The  writing  set  forth  in  the  indictment  is  such  an  in- 
strument as  will  constitute  at  common  law  a  forgery,  hence, 
the  conclusion  "  against  the  form  of  the  statute  "  may  be  re- 
jected as  surplusage,  and  under  the  conviction  in  this  case 
the  defendant  may  be  punished  for  a  misdemeanor,  as  at 
common  law.     Ibid. 

5.  In  an  indictment  for  forgery,  if  it  appears  that  the  in- 
strument is  kept  out  of  the  possession  and  knowledge  of  the 
jury  by  the  action  of  the  prisoner  himself,  the  act  is  equiva- 
lent to  the  destruction  of  the  instrument.  And  such  destruc- 
tion is  sufficiently  alleged,  under  the  circumstances,  when  it 
is  charged  in  the  indictment  that  the  prisoner  has  "  disposed 
of"  the  instrument.     State  v.  Ben.  Davis,  69  N.  C.  R.  313. 

0.  Indictment  for  forging  a  bond  or  other  instrument  is 
sustained  by  proof  of  the  forgery  of  the  name  of  one  of  the 
obligors  in  the  bond.     Ibid. 

7.  Where  an  indictment  charged  the  forgery  of  the  name 
of  a  firm  with  intent  to  defraud  two  persons  whose  names 
were  stated,  but  it  was  not  alleged  that  they  composed  the 
firm,  and  the  testimony  proved  the  forgery  with  an  intent  to 
defraud  the  firm,  but  it  was  not  proved  that  the  two  persons 
named  composed  the  firm :  heldy  that  the  allegations  of  the 
iudictment  were  not  proved,  and  that  it  was  error  in  the 
court  to  charge  otherwise.  State  v.  Harrison,  09  N.  C.  R. 
144. 


FORNICATION    AND    ADULTERY. 

1.  It  is  not  fornication  and  adultery  where  persons,  who 
were  formerly  slaves,  were  married  during  the  existence  of 
slavery  according  to  the  forms  then  prevailing,  and  after  their 
emancipation  continued  to  cohabit  together  in  the  relation  of 
husband  and  wife.  State  v.  Adams,  05  N.  C  R.  537. 
£*  2.  The  act  of  1805-'00,  ch  40,  sec.  5,  requiring  such  par- 
ties to  go  before  the  County  Court  Clerk,  or  a  Justice  of  the 
Peace,  and  to  acknowledge  the  fact  of  such  cohabitation,  and 
the  time  of  its  commencement,  makes  it  a  misdemeanor  only 
for  failure  to  perform  these  duties.     Ibid. 

See  (Husband  and  Wife — Of  marriage  1,  2.) 


FRAUD.  213 

FRAUD. 

I.     Fraud  in  conveyances.  |      II.     In  auction  sales. 

I.    FRAUD  EN  CONVEYANCES. 

1.  In  order  to  set  aside  a  conveyance  that  is  very  advant- 
ageous to  the  bargainee,  it  is  necessary  to  allege  and  prove, 
either  the  existence  of  those  confidential  relations  between 
the  parties  on  account  of  which  public  policy  will  not  allow 
such  a  transaction  to  stand,  or  actual  exercise  by  the  bar- 
gainee of  undue  influence,  circumvention  or  fraud.  Bur- 
roughs  v.  Jenkins,  Phil.  Eq.  R.  33. 

2.  A  mistake  in  a  deed  will  be  corrected,  only  upon  the 
terms  that  the  person  applying  therefor  will  give  effect  to 
such  counter  equities  in  favor  of  the  bargainor  as  may  arise 
out  of  the  transaction.     Coleman  v.  Coleman,  Phil.  Eq.  R.  43. 

3.  The  rule,  a  man  must  come  into  equity  with  clean 
hands,  does  not  apply  to  a  case  in  which  the  complainant 
seeks  to  set  aside  conveyances  made  by  himself  with  a  view 
to  evade  the  Confiscation  Acts  of  the  Confederate  govern- 
ment.    Blossom  v.  YanAmringe,  Phil.  Eq.  R.  133. 

4.  One  of  a  number  of  transactions  in  a  course  of  busi- 
ness is  not,  without  special  reason,  to  be  isolated  from  the 
general  account  of  such  business.     Ibid. 

5.  Where  property  was  bought  at  a  public  sale  of  which 
the  conditions  were  that  payments  should  be  made  in  "  good 
current  bank  money,"  and  a  purchaser  gave  his  note  for  the 
amount  of  his  purchase  in  general  terms,  without  adding 
''  good  current  bank  money,"  because  he  wa»  assured  it  was 
implied :  held,  that  equity  would  correct  the  mistake,  and 
supply  the  omission.      Womack  v.  Backer,  Phil.  Eq.  R.  161. 

6.  W  here  a  creditor  was  paid  a  smaller  sum  than  was  due, 
and  without  leading  it  signed  a  receipt  written  by  one  in 
whom  he  confided,  and  expressed  to  be  in fall  of  his  claim 
though  not  so  understood  by  him  :  held,  a  proper  case  for  a 
Court  of  Equity  to  relieve  by  correcting  the  receipt.  Elliott 
v.  Logan,  Phil!  Eq.  R.  163. 

7.  Where  ;i  son,  having  acquired  control  over  an  old  and 
imbecile  father,  in  the  absence  ot  other  friends  of  the  father 
and  otherwise  under  suspicious  circumstances,  obtained  a 
deed  for  all  the  father's  lands  at  an  inadequate  price,  and 
gave  his  note  for  the  amount,  a  Court  of  Equity  at  the  suit 
of  the  other  heirs  will  order  the  <]vv<\  to  be  cancelled.  Hart- 
leg  v.  Estis,  Phil.  Eq.  R.  167. 


214  FBAUD. 

8.  Where  land  was  sold  by  the  acre,  and  the  vendor  fraiu  - 
nlently  represented  the  tract  to  contain  a  greater  number  of 
acres  than  it  actually  contained,  the  purchaser  is  entitled  to 
relief  against  the  collection  of  so  much  ot  his  note  for  the 
purchase  money  as  is  for  the  excess.  Earl  v.  Bryan,  Phil. 
Eq.  11.  278. 

9.  One  who  asks  to  have  an  absolute  deed  corrected  into 
a  mortgage,  must  allege  and  prove  that  a  clause  of  redemp- 
tion was  omitted,  by  reason  of  ignorance,  mistake,  fraud  or 
undue  advantage  taken  of  the  bargainor.  Therefore,  no  relief 
■will  be  given  where  the  only  allegations  are,  that  the  bar- 
gainor executed  the  deed  in  absolute  form,  "  but  intended 
simply  as  a  mortgage,  as  will  more  fully  appear  by  the  proof"? 
— and,  that  the  contract  was  that  the  defendant,  "  having 
paid  the  debt  to  H,  took  the  deed  absolute  on  its  face  but 
agreed  to  make  a  title  bond  at  a  subsequent  day  to  the  plain- 
tiffs, conditioned  to  re-convey  on  the  payment  of  the  debt," 
Sec     Briant  v.  Corpening,  Phil.  L.  R.  325. 

10.  A  conveyance  to  pay  a  bona  fide  debt  if  made  by  the 
debtor  with  a  fraudulent  intent,  is  void.  Devries  v.  Haywood, 
03  N.  0  li-  53. 

11.  A  deed  conveying  property  in  trust  for  the  bargainor's 
only  son  and  in  case  of  the  sou's  death  without  issue,  then 
over,  prepared  and  registered  at  the  instance  of  the  bargain- 
or, will  not  be  set  aside  upon  a  bill  by  the  bargainor  alleging 
that  the  deed  was  not  delivered,  that  its  object  was  to  reclaim 
from  vice  the  son  (since  dead,  childless,)  and  that  it  was  not 
the  bargainor's  intent  to  deprive  himself  of  the  control  of  the 
property :  there  being  no  other  charge  of  fraud,  surprise  or 
■undue  influence,  than  a  recital,  that  in  preparing  and  regis- 
tering the  deed  the  bargainor  was  "  subject  to  the  control  and 
influence  of  the  improper  constraint,  advice  and  duress  of  pre- 
tended friends,"  and  that  he  was  "at  the  infirm  and  advanced 
age  of  seventy  years"    Harshaw  v.  Mci  ombs,  05  N.  0.  K.  75. 

12.  In  such  case  the  plaintiff  will  not  be  aided  by  an  al- 
legation that  the  deed  was  not  duly  stamped.     Ibid. 

13.  When  an  insolvent  person  misapplied  money  which 
had  been  placed  in  his  hands  in  trust  for  his  own  son :  held, 
that  he  might  replace  the  same  without  being  guilty  of  fraud 
against  other  creditors      Jackson  v.  Spivey,  03  N.  0.  E.  201. 

14.  A  bill  for  the  rescission  of  a  contract  on  account  of 
fraud  perpetrated  after  the  contract  is  made,  will  not  be  en- 
tertained ;  therefore,  a  bargainor  of  land  is  not  entitled  to 
such  relief,  in  a  case  where  he  alleged  that  some  years  after 
..the  contract  had  been  made,  the  bargainee,  having  asked  for 


FEAUD.  215 

them  upon  a  pretence  of  calculating  interest,  put  the  notes 
for  the  purchase  money  into  his  pocket,  at  the  same  time 
drawing  a  pistol  and  telling  the  bargainor  not  to  follow  him. 
Fulton  v.  Lofts,  03  X.C  K   393. 

15.  Upon  an  issue  of  fraud  in  regard  to  a  conveyance  of 
land,  it  appeared  that  the  consideration  set  out  was  $4,000, 
whilst  there  was  evidence  that  it  was  in  fact  considerably  less ; 
thereupon  the  vendee  (defendant,)  asked  the  court  to  instruct 
the  jury  that  it  was  not  incumbent  upon  him  to  prove  that 
he  had  given  exactly  that  amount,  so  that  it  were  shown  that 
he  had  given  a  fair  and  reasonable  price:  held,  that  such 
instructions,  in  reply  to  his  prayer,  that  the  fact,  that  the 
consideration  set  out  in  the  deed  was  $-4000,  did  not  })er  se 
render  the  deed  fraudulent ;  but  that  in  a  question  of  fraud, 
the  jury  were  at  liberty  to  take  it  into  consideration  together 
with  other  circumstances,  were  responsive  and  correct.  Pee- 
bles v.  Horton,  04  N.  O.  E.  374. 

10.  That  the  only  parties  present,  in  February,  1805,  at 
a  conveyance  of  all  the  vendor's  land  in  satisfaction  of  old 
debts,  where  the  vendor  and  vendee,  who  were  brothers-in- 
law,  and  the  subscribing  witness,  also  a  brother-in-law,  of  the 
vendee:  is  a  fact  calculated  to  throw  suspicion  upon  the 
transaction,  i.  e.,  is  a  badge  of  fraud.     Ibid. 

17.  That  a  defendant  declines  to  call  as  a  witness  in 
regard  to  a  transaction  to  which  he  was  a  party,  a  disinter- 
ested and  unimpeachable  person,  then  known  by  him  to  be 
present  in  court ;  and  instead,  becomes  a  witness  in  regard 
to  such  transaction  himself — it  being  the  very  matter  in  ques- 
tion in  such  suit — is  also  calculated  to  excite  suspicion;  and 
instructions  thereupon, — that  it  was  not  evidence  of  fraud  by 
itself,  but  considerable  latitude  is  permitted  to  counsel  in 
such  matters,  and,  under  the  circumstances  the  plaintiff's 
counsel  were  at  liberty  to  comment  upon  it  as  a  badge  of 
fraud,  and  the  jury  may  consider  of  it  in  making  up  their 
verdict,  were  correct.     Ibid. 

is  \\  'here  a  conveyance  of  land  is  made  upon  a  valuable 
consideration,  it  is  erroneous  to  make  its  validity  as  against 
creditors  to  depend  upon  the  intention  with  which  the  vendor 
(alone)  made  it,  ex.  gr.  his  intention  to  hinder,  d-c,  his  cred- 
itors.    Lassiter  v.  Vavis,  0*  N.  O.  R.  408. 

10.  Jt  seems  to  be  otherwise  where  the  conveyance  is  vol- 
untary merely.     Ibid. 

L'0.  A  transaction  in  which  one  creditor  consents,  upon 
receiving  security  by  way  of  mortgage,  to  give  indulgence  to 
his  debtor,  is  not  therefore  fraudulent  as  to  other  creditors. 
Rarskaw  v.  Woodjin,  04  X.  0.  B.  568. 


216  FRAUD. 

21.  Ordinarily,  the  maxim  of  caveat  emptor,  applies 
equally  to  sales  of  real  and  personal  property,  and  is  adhered 
to  in  all  courts,  where  there  is  no  fraud.  Walsh  v.  Hall,  66 
K  0.  R.  233. 

22.  But  if  representations  made  by  one  party  to  a  con- 
tract, which  may  be  reasonably  relied  on  by  the  other,  con- 
stitute a  material  inducement  to  the  contract  are  knowingly 
false ;  cause  loss  to  the  other  party  relying  on  them ;  and 
such  other  party  has  acted  with  ordinary  prudence,  he  is 
entitled  to  relief  in  any  court  of  justice.     Ibid. 

23.  If  the  parties  have  equal  means  of  informotion,  the 
rule  of  caveat  emptor  applies,  and  an  injured  party  cannot 
have  redress,  if  he  fail  to  avail  himself  of  those  sources  of 
information  which  he  may  readily  reach,  unless  prevented  by 
the  artifice  or  contrivance  of  the  other  party.     Ibid. 

24.  So,  if  the  false  representation  is  a  mere  expression  of 
commendation,  or  simply  a  matter  of  opinion,  the  parties  tiro 
considered  as  standing  on  an  equal  footing,  and  the  courts 
will  not  interfere.     Ibid. 

25.  In  contracts  of  this  character,  fraud  without  damage, 
or  damage  without  fraud,  are  usually  not  the  subject  of  an 
action  for  deceit.     Ibid. 

26.  In  a  case  like  that  set  forth  in  the  answer,  the  pur- 
(h  iser  of  lands  is  not  required,  in  order  to  guard  as.  a  nst  the 
fraudulent  representations  of  a  vendor,  to  cause  a  survey  to 
be  made;  unless  some  third  person  is  in  possession  claiming 
title ;  or  there  is  some  dispute  about  the  boundary  or  as  to 
the  location  ;  or  he  has  received  some  information  which 
would  reasonably  induce  him  to  suspect  fraud.     Ibid. 

27.  It  is  well  settled  that  retention  of  possession  by  the 
maker  of  a  deed,  forging  the  name  of  a  witness  to  a  deed  and 
the  like,  do  not  per  se  render  a  deed  fraudulent,  but  are  cir- 
cumstances to  be  weighed  and  considered  by  the  jury.  Isler 
v.  Foy,  m  N.  0.  R.  547. 

28.  Where  a  fraudulent  grantee  of  land  conveyed  it  to  a 
bona  fide  purchaser  for  value  without  notice  of  the  fraud, 
after  a  creditor  of  the  fraudulent  grantor  had  obtained  a 
judgment  against  him,  but  before  the  land  was  sold  under  an 
execution  issued  on  such  judgment,  and  tested  of  the  term 
when  it  was  obtained:  it  was  held,  (Boyden,  J.,  dissenting,) 
that  by  force  of  the  proviso  contained  in  the  4th  section  of 
the  60th  chapter  of  the  Revised  Code,  (13  Eliz.,  ch.  5,  sec  6,) 
the  title  of  the  bona  fide  purchaser  from  the  fraudulent  gran- 
tee was  to  be  preferred  to  that  of  the  purchaser  under  the 
execution  of  the  creditor  of  the  fraudulent  grantor,  Youna 
v.  Lathrop,  67  K  C.  R.  63. 


FRAUD.  217 

29.  It  is  a  rule  of  law,  that  where  a  debtor,  much  embar- 
rassed, conveys  property  of  much  value  to  a  near  relative, 
and  the  transaction  is  secret,  aud  no  one  present  to  witness 
the  trade  except  these  near  relatives,  it  must  be  regarded  as 
fraudulent.  But  where  these  relatives  are  examined  as  wit- 
nesses, and  depose  to  the  fairness  and  bona  fides  of  the  con- 
tract, and  that  there  was  no  purpose  of  secrecy,  it  theu  be- 
came a  question  for  the  jury  to  determine  the  intent  of  the 
parties,  and  to  find  the  contract  fraudulent,  or  otherwise,  as 
the  evidence  may  satisfy  them.  Reiger  v.  Davis,  07  X.  0. 
E.  185. 

30.  An  absolute  conveyance  for  a  valuable  consideration 
is  good,  notwithstanding  the  intent  of  the  maker  to  defraud, 
if  the  grantee  was  not  a  party  to  such  a  fraud,  and  bought 
without  any  knowledge  of  the  corrupt  intent.     Ibid. 

31.  Where  the  presiding  Judge  of  a  Superior  Court,  at 
one  of  its  terms  in  the  Fall  of  1863,  made  a  violent  charge  to 
the  grand  jury,  upon  the  subject  of  Confederate  money  in 
payment  of  debts,  in  which  he  said,  among  other  things,  that 
a  refusal  to  receive  such  money  was  an  indictable  offence,  aud 
threatened  to  punish  all  who  refused  ;  and  where  he  procured 
a  presentment  to  be  made  by  the  grand  jury  against  a  judg- 
ment creditor,  who  refused  to  take  Confederate  currency  in 
payment  ot  a  judgment  rendered  in  1858,  upon  a  bond  given 
for  land,  and  payable  in  specie;  and  furthermore,  threatened 
said  creditor  that  if  he  did  not  receive  such  currency  he  would 
send  him  to  jail,  or  to  Richmond,  Va  ;  and  the  creditor,  un- 
der fear,  being  an  infirm  old  man,  did  receive  such  currency 
in  payment  of  his  judgment,  aud  did  execute  and  deliver  a 
deed  for  the  land,  which  he  had  contracted  to  sell :  held,  that 
the  receipt  of  the  Confederate  currency,  under  such  circum- 
stances, was  under  duress,  and  was  not  a  payment  of  the 
judgment  further  than  the  value  of  such  currency,  and  that 
the  land  conveyed  should  be  considered  a  security  for  the  pur- 
chase money.     Hanshaw  v.  Dobin,  07  N.  C.  R.  203. 

32      A  judgment  debtor  who  pays  a  debt  and  receives  a 
deed  under  such   circumstances   of  intimidation  and  duress, 
although  he  did  not  procure  them  to  be  brought  about,  can- 
not avail  himself  of  such  an  advantage  to  purpetuate  an  uncon- 
scientious act.     Ibid 

33.  The  ignorance  of  a  party  who  has  profited  by  a  fraud 
will  not  allow  him  to  retain  the  fruit  of  another  man's  mis- 
conduct, or  exempt  him  from  the  duty  of  restitution.  Leex. 
Pea, re,  68  X.  C.  R.  70- 

31.     Certain  known   and  definite  fiduciary  relations,  that,. 


218        FRAUD.— FUGITIVE  FROM  JUSTICE. 

for  instance,  of  trustee  and  cestui  que  trust,  attorney  and 
client,  guardian  and  ward  and  general  agent,  having  the 
entire  management  of  the  business  of  the  principal,  are  suffi- 
cient under  our  present  judiciary  system,  to  raise  presump- 
tion of  fraud  as  a  matter  of  law,  to  be  laid  down  by  the 
Judge  as  decisive  of  the  issue,  unless  rebutted.  Other  pre- 
sumptions of  fraud  are  matters  of  fact  to  be  passed  upon  by 
a  jury.    Ibid: 

35  It  is  error  for  a  Judge  to  charge  a  jury  that  fraud 
must  be  proved  by  the  party  alleging  it,  "  beyond  a  reasona- 
ble doubt."  The  rule  being,  if  the  evidence  creates  in  the 
minds  of  the  jury  a  belief  that  the  allegation  is  true  they 
should  so  hud.     Ibid. 

36.  A  purchaser  of  laud  from  one  claiming  the  same  under 
a  deed,  declared  by  the  jury  to  be  fraudulent,  stands  on  no 
better  looting  than  the  fraudulent  donee  himself;  nor  can  the 
deed  of  such  purchaser  have  any  other  or  greater  effect  than 
the  deed  declared  to  be  fraudulent,  except  such  purchase  was 
for  a  valuable  consideration,  and  without  notice  of  the  fraud 
attempted  to  be  perpetrated.  Wade  v.  Saunders,  70  N.  0.  R. 
270. 

37.  Since  the  passage  of  the  act  of  1840,  (chap.  50,  Rev. 
Code,)  a  purchaser  of  laud,  with  notice  at  the  time  of  a  for- 
mer fraudulent  conveyance,  is  not  protected  in  his  purchase, 
although  he  paid  value  therefor.  Triplett  v.  Witherspoon, 
70  N.  O.  R.  589. 

See  (Husband  and  Wife — Agreements  between  them,  7.) 
(Mortgage,  21.)     (Vendor  and  Purchaser,  1,  12.) 

II.     IN  AUCTION  SALES. 

Where  a  bidder  at  auction  offered  one  who  also  proposed 
to  bid,  that  if  he  would  desist,  she  would  divide  the  land  with 
him :  held,  to  be  a  fraud  upon  the  vendor,  and  so,  to  violate 
the  contract  of  purchase  afterwards  made  by  her  as  the  only 
bidder.      Whitaker  v.  Bond,  63  N.  0.  R.  290. 


FUGITIVE    FROM    JUSTICE. 

A  person  applying  for  and  receiving  from  a  sheriff  a  war- 
rant and  special  deputation  to  arrest  a  fugitive  from  justice, 
and  who  executes  the  warrant  aud  delivers  to  the  sheriff  the 
person  arrested,  is  not  entitled  to  the  reward  offered  by  the 
Governor  lor  the  apprehension  of  such  fugitive.  Malpass  v. 
Caldwell,  70  N  C.  R.  130. 


GAMING.— GRANT.  219 


GAMING. 

1.  A  note  given  subsequently  in  purchase  of  a  magistrate's 
judgment  which  had  been  won  at  cards  by  the  payee  from 
the  maker,  is  not  void  under  the  statute  against  gaming, 
league  v.  Perry,  04  N.  0.  R.  39. 

2.  The  statute  (Rev.  Code,  ch.  51,  sec  2,  i  which  avoids 
all  judgments,  &c  ,  for  and  on  account  of  any  money,  or  pro- 
perty, or  thiug  in  action  wagered,  bet,  &c,  does  not  include 
judgments  taken  in  invitum,  but  only  such  as  are  confessed, 
or  taken  by  consent.     luid. 

3.  A  note  in  renewal  of  a  former  note  of  the  maker  for 
money  won  at  cards,  given  to  one  who  is  endorsee  of  such 
former  note  for  value  and  without  notice,  is  not  affected  by 
the  gaming  consideration.  Calvert  v.  Williams,  64  N.  0.  R. 
16S. 


GRANT. 

1.  In  a  grant  to  one  Blount,  there  was  an  exception  of 
«*  13,733  acres  of  land,  entered  by  persons,  whose  names  are 
hereunto  annexed  ;"  among  such  names  was  that  of  "  Gabriel 
Ragsdale,  100  acres ;"  it  was  shown  that  this  100  acres  was 
afterwards  surveyed,  and  granted  to  one  Williams,  under 
whom  the  plaintiff  claimed  :  held,  that  thereby  the  exception 
in  the  Blount  grant,  as  regards  the  100  acres,  became  as  cer- 
tain as  if  set  out  by  metes  and  bounds.  Melton  v.  Monday,  04 
X  0.  R.  205 

2.  An  abstract  of  a  grant,  as  follows:  "Sampson  Wil- 
liams, :J00  acres,  Anson,  on  Mountain  Creek,  beginning  at  a 
pine,  &c,  [bounding  it.]  May  24th,  1773,  (signed)  Jo  Mar- 
tin,"—shows  with  requisite  certainty,  that  there  is  a  grantor, 
Martin;  a  grantee,  Williams;  a  thing  granted,  300  acres; 
and  that  a  grant  was  executed  on  the  24th  of  May,  1773. 
McLenan  v.  ChisJwlm,  64  X.  C.  R.  328. 

."..  Although,  a  party  offering  a  grant  in  evidence,  do  not 
connect  his  own  title  with  that  of  the  grantee,  still  he  may 
1m-  interested  in  proving  the  title  out  of  the  State  ex.  gr.  in 
order  to  shorten  the  period  which  ripens  a  color  of  the  title 
into  a  good  title.     Ibid. 


220     GUARANTY.— GUARDIAN  AND  WARD. 


GUARANTY. 

1.  A  creditor  having,  in  March,  1863,  refused  to  accept 
Confederate  or  State  notes  for  certain  debts  contracted  before 
the  late  war,  the  debtor  brought  to  him  a  bond  upon  a  third 
party  for  the  amount,  payable  to  the  creditor,  and  he  agreed 
to  take  it  in  discharge  of  the  debt  provided  the  debtor  would 
sign  it  as  surety.  He  did  so,  and  the  former  evideuces  of  in- 
debtedness were  cancelled  :  held,  that  the  debtor  became  a 
guarantor  of  the  bond,  and  was  liable  in  assumpsit  for  the 
full  amount,  without  reference  to  the  laws  providing  for  a 
sale  of  debts  contracted  during  the  war.  Carter  v.  McGehee, 
Phil.  L.  R.  431. 

2.  The  assignor  of  a  note  not  negotiable  is  liable  only  as 
guarantor,  and  as  such,  is  entitled  to  notice  of  the  default  of 
the  principal  debtor.     Sutton  v.  Owen,  65  1ST.  0.  R.  123. 

3.  In  a  suit  upon  the  following  guaranty,  to  wit:  "  We, 
the  undersigned,  have  this  day  sold  to  T.  A.  J.,  Administra- 
tor, &c.,  the  notes  listed  above;  and  we  bind  ourselves  for 
any  and  all  of  the  above-named  notes,  should  the  said  T.  A.  J. 
fail  to  collect  the  same  :  held,  that  the  guarantors  were  bound 
for  the  face  value  of  the  notes,  principal  and  interest,  though 
the  same  might,  between  the  maker  and  payee,  be  subject  to 
the  legislative  scale.     James  v.  Long,  68  N.  0.  R.  218. 


GUARDIAN    AND    WARD. 

I.     Powers,    duties  and   liabilities  of         II.     Suit  on  guardian  bonds, 
guardians. 

I.     POWERS,  DUTIES  AND  LIABILITIES  OF  GUARDIANS. 

1.  AVhere  a  guardian  collected  a  bond  due  to  his  ward  by 
solvent  persons,  in  November,  1863,  nearly  two  years  after 
the  ward  became  of  age,  in  Confederate  currency:  held,  that 
at  the  suit  of  the  ward  he  was  chargeable  with  the  fall 
amount  of  the  bond,  and  interest.  Gibbs  v.  Gibbs,  Phil.  L. 
R.  471. 

2.  A  guardian  who  advances  money  for  his  ward  over  and 
above  the  income  of  his  estate,  in   order  to  set  him  up  in 
business,  or  for  other  purposes,  without  applying  to  the  court 
for  leave,  is  not  entitled  to  charge  the  ward  with  it.     Shai* 
v.  Coble,  63  N.  C.  R.  377. 


GUAEDIAN  AND  WAED.  221 

3.  Where  the  administrator  of  a  deceased  ward  settled 
with  the  guardian  in  February,  1804,  aud  received  from  him 
Confederate  money  at  its  face  value  in  payment  of  the  bal- 
ance due  the  ward :  held,  that  such  payment  was  conclusive, 
and  the  guardian  was  entitled  to  credit  for  it  iu  an  account 
taken  between  him  aud  his  ward's  next  of  kin.     I  hid. 

4.  Where  doubts  as  to  the  propriety  of  an  investment  by 
a  guardian,  are  sought  to  be  removed  by  him  by  false  swear- 
ing, the  question  will  be  decided  against  him.  Hurdle  v. 
Leathj  03  N.  0.  K.  597. 

5.  If  a  bond  with  two  obligors,  of  whom  the  principal  is 
solvent  and  the  surety  doubtful,  be  accepted  by  a  guardian, 
he  is  liable  if  the  money  be  lost.     1  bid. 

0.  Depreciated  bank  notes  produced  by  a  guardian  on 
settling  his  accounts,  are  not  to  be  allowed  him  at  par;  and 
qucere  if  they  should  be  allowed  at  all,  unless  some  satisfac- 
tory explanation  accompany  their  production.     Ibid. 

7.  Iu  passing  the  accounts  of  a  guardian,  he  cannot,  ex- 
cept under  rare  circumstances,  be  allowed  disbursements 
beyond  the  income  of  his  ward.  CaJJey  v.  McMichael,  64 
N.  C.  R.  507. 

8.  Where  a  guardian  had  purchased  a  horse  aud  buggy 
for  his  ward,  and  in  so  doing  had  gone  greatly  beyond  his 
income,  but  the  ward  used  them  for  some  time  after  he 
became  of  age,  and  then  sold  them,  and  received  the  money 
for  them, — he  must  be  taken  as  having  ratified  the  transac- 
tion.    Ibid 

9.  A  guardian  of  an  infant  (some  fifteen  years  of  age,) 
obtained  judgment  in  her  favor  in  July,  1801,  against  parties 
who  were,  and  remained  until  the  surreuder,  amply  solvent — 
by  his  direction  no  executiou  was  issued  upon  such  judgment 
during  the  war,  and  until  his  death,  in  March,  1800,  the  ad- 
ministrator of  the  guardian  commenced  an  action  upon  the 
judgment  in  October,  1800;  and  before  he  obtained  judg- 
ment therein,  the  defendants  sold  out  their  property,  re- 
moved from  the  State,  and  were  found  to  be  insolvent :  held, 
that  neither  the  guardiau  nor  his  administrator  were  charge- 
able with  negligence  in  managing  the  debt  due  to  the  ward. 
State,  &c,  v.  Iiobinson,  04  N.  O.  R.  698. 

10.  Guardians  are  not  responsible  for  losses  to  their  wards 
attributable  to  their  not  having  resorted  to  new  and  extra- 
ordinary remedies,  the  force  and  effect  of  which  are  doubtful. 
Ibid. 

11.  If  a  guardian,  or  his  personal  representative  after  his 
death,  for  his  own  benefit  disposed  of  a  bond  which  was  on 


222  GUAKDIAN  AND  WARD. 

its  face  payable  to  his  guardian,  the  ward  may  follow  the 
bond  or  its  proceeds  in  the  hands  of  the  assignee  or  holder. 
And  in  such  case,  the  face  of  the  bond  will  be  of  itself  express 
notice  to  the  assignee  or  holder  of  the  breach  of  trust  by  the 
guardian,  or  by  his  executor  or  administrator.  Lemly  v. 
Atwood,  65  N.  0.  R.  46. 

12.  In  a  case  in  which,  under  the  circumstances,  a  guar- 
dian was  justified  in  Confederate  treasury  notes  for  his  wards, 
during  the  late  civil  war,  he  will  be  justified  iu  having  con- 
verted them  into  Confederate  bonds  even  so  late  as  the  vear 
1864.     Sudderth  v.  MvCombs,  65  K  C.  K   186. 

13.  Where  a  guardian,  iu  the  year  1850  and  '60,  received 
bank  notes  for  his  wards  and  failed  to  invest  them  for  their 
benefit,  he  will  be  charged  with  the  amount  of  the  notes,  with 
interest  from  date  of  their  receipt,  uuless  he  can  show  some 
good  cause  for  his  apparant  default.     Ibid. 

14  The  reception  by  a  guardian  of  Confederate  money  in 
the  early  part  of  the  year,  1865,  for  the  solvent  debts  due  his 
wards  was  apparently  inexcusable,  and  it  will  be  fov  the  guar- 
dian to  show  circumstances  in  justification  of  his  act.     Ibid. 

15.  The  Superior  Court  has  no  original  jurisdiction  of  an 
action  for  an  account  by  an  existing  guardian  of  infant  chil- 
dren against  their  former  guardian  ;  such  action  must  be 
brought  in  the  Court  of  Probate.     Ibid. 

16.  Under  the  provision  of  the  Revised  Code,  ch.  54,  sec. 
23,  authorizing  a  guardian  to  lend  the  money  of  his  ward 
"  upon  bond  with  sufficient  security,"  he  might,  upon  a  loan 
before  the  late  civil  war,  have  taken  a  bond  secured  by  a 
mortgage  of  slaves,  and  cawnot  now  be  made  responsible  for 
the  loss  of  the  debt  by  the  emancipation  of  the  slaves.  Whit- 
ford  v.  Foy,  65  N.  C.  li.  265. 

17.  A  guardian  who,  before  the  late  civil  war,  took  from 
the  administrator  of  the  father  of  his  wards  certain  promis- 
sory notes  as  a  part  of  the  effects  of  his  wards,  but  did  not 
collect  them  and  lend  the  money  upou  bonds  with  sufficient 
security  taken  to  himself  as  guardian,  is  not  responsible  for 
the  amount  of  them  if  they  were  lost  by  the  events  of  the 
war  without  any  neglect  or  default  ou  his  part,  but  he  is  re- 
sponsible for  the  annual  interest  which  he  might  have  col- 
lected and  invested  for  their  benefit.     Ibid. 

18.  A  bailee  who  misuses  the  thing  bailed,  thereby  con- 
verts it  to  his  own  use,  and  becomes  liable  for  its  value, 
whether  any  loss  occurs  from  such  misuser  or  not ;  but  that 
rule  does  not  apply  to  a  trustee,  who,  when  no  fraud  is  im- 
puted, is  only  liable  for  a  loss  resulting  from  his  culpable 
negligence  with  regard  to  his  trust.     Ibid. 


GUARDIAN  AND  WARD.  223 

19.  A  guardian  is  not  responsible  for  having  received  bank 
notes  and  Confederate  money  before  Marcb,  186'-',  and  did 
not  invest  it  for  the  benefit  of  his  wards,  when  it  is  shown 
that  he  made  a  bona  fide  effort  to  do  so,  but  was  prevented 
by  the  events  of  the  war.     Ibid. 

20.  In  taking  an  account  of  a  fund  in  the  barn's  of  a 
guardian  in  which  two  or  more  wards  are  interested,  it  is 
proper  to  state  a  general  account  of  the  whole  fund  in  the 
end  of  each  year,  and  also  a  separate  account  with  each  ward 
to  the  end  of  the  same  year,  crediting  the  ward  with  his 
share  of  the  balance  found  owing  on  the  general  account, 
and  debiting  him  with  any  proper  debits  peculiar  to  himself. 
In  this  way  the  balance  due  to  each  ward  at  the  end  of  each 
year  is  ascertained  ;  and,  upon  the  death  or  coming  of  age  of 
one  of  them  the  sum  due  to  him  will  be  payable  immediately 
and  will  cease  to  bear  compound  interest.     Ibid. 

21.  A  guardian  will  be  allowed  for  reasonable  counsel 
fees  paid  for  advice  and  assistance  in  the  management  of  his 
trust,  and  he  may  bo  allowed  also  for  the  fees  paid  to  counsel 
in  making  a  fair  defence  to  the  suit  brought  against  him  for 
an  account  and  settlement  of  his  guardianship.     Ibid. 

22  Reasonable  commissions  will  always  be  allowed  to  a 
guardian  unless  in  cases  of  fraud  or  very  culpable  negligence. 
The  rate  will  depend  upon  a  variety  of  circumstauces,  such 
as  the  amount  of  the  estate,  the  trouble  in  managing  it, 
whether  fees  have  been  paid  to  counsel  for  assisting  him  in 
the  management,  the  last  of  which  will  lessen  it.     Ibid. 

23.  Commissions  should  be  allowed  a  guardian,  ou  amount 
of  the  notes  and  other  securities  for  debt  delivered  to  the 
ward  upon  the  termination  of  the  guardianship.     Ibid. 

24.  A  guardian,  who  held  a  well  secured  ante-war  note, 
and  collected  the  same  in  Confederate  currency,  in  Septem- 
ber and  October,  1803,  when  there  was  no  need  for  its  collec- 
tion, and  immediately  thereafter  invested  the  same  in  7-30 
Confederate  bonds,  was  guilty  of  laches,  and  is  liable  to  his 
ward  lor  the  full  amount  of  the  principal  and  interest  of  said 
note.     Purser  v.  Simpson,  05  N.  C  R  497. 

2o.  After  the  4th  of  July,  1803,  no  person  acting  in  a 
fiduciary  capacity,  ought  to  have  collected  well  secured  ante- 
war  debts,  and  invested  in  Confederate  securities.     J  bid. 

20.  A  guardian  who  took  a  note  in  October,  1800,  with 
two  securities  who  were  abundantly  good,  and  continued  so 
dming  the  war,  cannot  be  held  responsible  to  his  wards,  by 
reason  of  the  parties  to  said  note  having  become  insolvent  by 
the  results  of  the  war.     Covington  v.  Wall,  05  .N.  C.  R.  594. 


224  GUARDIAN  AND  WARD. 

27.  A  guardian  who  receives  a  note  for  $1,100,  without 
taking  any  security,  is  guilty  of  laches,  and  is  accountable  to 
his  wards  for  the  amount  of  such  note.     Ibid. 

28.  It  is  not  unreasonable  to  allow  five  per  cent,  commis- 
sions to  a  guardian  on  his  receipts  and  disbursements,  which 
•embraced  a  large  number  of  receipts  and  vouchers,  commen- 
cing in  1857,  and  ending  in  May,  1871.     Ibid. 

29.  A  guardian  is  accountable  to  his  wards  for  a  sum  of 
money  in  the  hands  of  an  administrator  appointed  in  1857, 
if  such  administrator  or  his  sureties  were  solvent  at  the  time 
when  the  funds  ought  to  have  been  paid  to  the  guardian,  or 
within  the  time  thereafter,  when  a  judgment  could  have  been 
obtained  upon  such  administration  bond.     Ibid. 

30.  A  guardian  or  other  trustee  is  bound  only  to  use  such 
care  and  dilligence  in  keeping  the  trust  fund  as  a  prudent 
man  uses  in  keeping  his  own  tunds.  Atkison  v.  Whitehead, 
m  N.  0.  R.  290. 

31.  Where  money  was  stolen  from  an  iron  safe,  where  it 
had  been  deposited  by  a  guardian  as  a  trust  fund,  with  his 
own  money  and  valuable  papers,  and  the  theft  was  not  dis- 
covered for  several  days,  and  pursuit  was  made  for  the  thief 
in  reasonable  time :  held,  that  the  guardian  iu  such  case  was 
not  guilty  of  negligence.     Ibid. 

32.  Where  a  guardian  received  from  the  administrator, 
as  part  of  his  ward's  distributive  share,  in  1804,  a  bond  made 
hy  himself,  in  1802,  he  must  account  for  the  value  of  the 
bond  as  of  the  date  it  was  given.  Dobbins  v.  Osborne.  67 
N.  O.  R.  259. 

33.  A  guardian  may  concur,  iu  behalf  of  his  ward,  in  a 
partition  of  property  in  which  the  ward  is  the  tenant  in  com- 
mon, provided  the  partition  be  equal.  But  when  the  guardian 
was  personally  interested,  he  cannot  insist  upon  a  partition 
agreed  to  by  him,  by  which  his  ward  gets  less  thau  his  share. 
McLarty  v.  Brown,  67  N.  O.  R.  311. 

34.  The  highest  degree  of  good  faith  is  not  exacted  of  a 
guardian,  but  only  ordinary  diligence,  certainly  not  infallible 
judgment.     Covington  v.  Lea,  67  IS".  C.  R  263. 

35.  Therefore,  where  a  judgment  was  rendered  in  favor  of 
a  guardian  in  1863,  and  he  refused  to  receive  Confederate 
money  in  payment  thereof,  and  omitted  the  collection  of  the 
same  during  the  war,  and  even  up  to  the  time  of  his  death 
in  1868:  it  was  held,  that  under  the  peculiar  circumstauces 
of  the  country  he  was  not  guilty  of  such  negligence  as  to 
charge  his  estate.  It  was  further  held,  that,  considering  the 
circumstances,  in  connection  with  the  fact  that  the  sureties 


GUARDIAN  AND  WARD.  225 

on  the  administration  bond  were  solvent,  and  still  continue 
apparently  so,  be  was  not  guilty  of  negligence  in  omitting 
to  sue  them.    Ibid. 

30.  Tbe  conversion  by  a  guardian  to  bis  own  use  of  bonds 
or  notes  belonging  to  bis  ward,  renders  him  liable  for  their 
actual  value,  not  the  value  expressed  on  the  face  of  the  same. 
Winstead  v.  Stanfield,  08  N.  0.  R.  40. 

37.  When  a  guardian  makes  no  effort  to  invest  bis  ward's 
money  at  a  profit,  but  uses  it  in  his  own  business,  he  coverts 
it,  and  is  liable  for  its  value  at  the  time  of  the  conversion. 
And  having  received  Confederate  money  and  bank  notes,  he 
is  liable  for  the  value  of  the  same  at  the  date  of  the  receipt, 
the  former  to  be  ascertained  by  the  scale,  and  that  of  the 
latter  upon  evidence.     Ibid. 

38.  Upon  the  marriage  ot  a/ewieward,  compound  interest 
ceases,  and  she  has  no  right  to  demand  the  same  in  a  settle- 
ment with  her  guardian.     Ibid. 

39.  A  guardian  in  good  faith  sold,  on  a  credit  of  twenty 
days,  the  cotton  of  his  wards,  taking  from  the  purchaser  his 
note  without  security  for  the  price  of  the  cotton,  the  purcha- 
ser being  at  the  time  ot  the  sale  solvent  and  the  owner  of  real 
estate,  but  before  the  note  was  collected  became  iusolvent 
and  unable  to  pay  the  note:  held,  that  the  bona  fides  being* 
established,  he  was  not  liable  to  his  wards  for  failing  to  col- 
lect the  amount  for  which  the  cotton  was  sold.  Lawrence  v. 
Morrison,  08  N.  C.  R.  162 

40.  A  guardian  who  is  a  party  to  a  petition  to  sell  real 
estate  in  which  his  ward  is  interested,  has  a  right  to  bid  for 
and  purchase  the  same  at  the  sale  made  by  a  commissioner 
under  a  decree  of  the  court.  Simmons  v.  Hassel,  08  N.  0.  R. 
213 

41.  Where  a  guardian  sends  his  wards  to  a  school,  the 
■charges  for  board,  tuition,  &c,  will  in  the  absence  of  a  special 
contract  to  the  contrary,  be  upon  his  individual  responsibil- 
ity, but  where  in  a  suit  against  the  guardian  for  such  school 
board,  tuition,  &c,  the  answer  of  the  defendant  denies  his 
individual  liability,  and  alleges  that  the  credit  was  given  by 
the  plaintiff  to  the  estate  ot  his  wards  in  his  hands,  an  issue 
of  fact  is  raised  as  to  the  individual  liability  of  the  guardian, 
•which  must  be  submitted  upon  the  evidence  pro  and  eon  to 
the  jury  for  their  determination.  Salem  Female  Academy  v. 
Phillips,  68  N.  0.  R.  491. 

42.  Where  the  land  of  an  infant  was  sold  under  a  decree 
of  the  Court  of  Equity,  prior  to  the  year,  1802,  and  the  pur- 
chase money  was  in  that  year  paid  to  the  Clerk  and  Master 

15 


226  GUARDIAN  AKD  WARD. 

in  Confederate  currency,  who  received  it  in  the  absence  of 
instructions  not  to  do  so  :  It  was  held,  that  the  guardian  of 
the  infant  was  justified  in  receiving  the  same  money  from  the 
Clerk  and  Master,  and  was  to  be  made  responsible  to  his 
ward  only  for  its  value  according  to  the  legislative  scale* 
Johnson  v.  Haynes,  68  N.  C.  R.  509. 

43.  When  the  amount  of  interest  with  which  a  guardian 
is  to  be  charged  in  his  settlement  with  his  ward  is  doubtful,, 
it  is  to  be  decided  against  him,  when  it  appears  that  his 
accounts  are  badly  kept.     Ibid. 

44.  A  settlement  made  by  a  guardian  with  his  ward  a  few 
days  after  his  coming  of  age,  is  not  binding  upon  the  latter 
when  it  appears  that  he  was  without  the  advice  of  his  friends,, 
and  that  it  was  made  under  circumstances  indicative  of  fraud 
and  circumvention.     Ibid. 

45.  Counsel  fees  paid  by  a  guardian  are  not  to  be  allowed 
in  his  settlement  with  his  ward,  when  it  appears  that  the 
counsel  was  employed  not  for  the  advantage  of  the  ward,  but 
solely  for  his  own  benefit. 

46.  A  guardian  cannot  be  allowed  in  an  account  with  his 
ward  for  an  expenditure  greater  than  the  income  of  such 
ward's  estate.     Johnston  v.  Haynes,  68  N.  C.  R.  514. 

47.  The  amount  of  allowance  of  commissions  to  a  guard- 
ian by  a  referee  is  usually  adopted  by  the  Lourt,  unless  it  is 
shown  to  be  excessive.     Ibid. 

48.  When  a  guardian  uses  the  funds  of  his  wards  in  the 
purchase  of  a  tract  of  land,  they  can  follow  the  land  to  enforce 
the  payment  of  the  amount  due  them,  and  nothing  can  divest 
their  right  to  do  so  except  the  exercise  of  their  own  free  wills 
after  coming  of  age,  or  the  decree  of  some  Court  of  competent 
jurisdiction.     Younce  v.  McBride,  68  N.  C  R.  532. 

49.  When  a  guardian  subsequently  became  trustee,  there 
is  no  presumption  of  law  that  he  ceased  to  hold  the  fund  as 
guardian  as  soon  as  he  became  trustee.  State  ex  rel.  Jones  v. 
Brown,  68  N.  C.  R.  554. 

50.  When  a  guardian  received  a  note  in  settlement  from 
a  former  guardian  which  had  no  surety,  but  the  maker  was 
solvent,  although  the  taking  of  the  bond  without  security  was 
negligence  in  the  former  guardian,  and  although  the  subse- 
quent guardian  was  not  obliged  to  take  it,  yet  after  he  has 
taken  it,  the  former  guardian  is  discharged.     I  bid, 

51.  The  administrator  of  a  deceased  guardian  cannot 
maintain  an  action  on  the  bond  of  a  clerk  and  master  for  a 
fund  alleged  to  be  due  to  the  ward.  Davis  v.  Fox,  69  N.  C. 
R.  435. 


GUABDIAX  AND  WAED.  227 

52.  "Where  a  gnardian  purchases  a  claim  against  his  wards 
he  cannot  charge  them  with  more  than  he  paid,  and  the  fact 
that  he  was  the  creditor  by  having  made  proper  advauces  to 
his  wards,  ami  afterwards  became  bankrupt,  and  then  pur- 
chased the  claim  from  his  assignee,  does  not  alter  the  princi- 
ple. But  the  guardian  must  be  taken  to  have  paid  himself 
as  soon  as  funds  of  his  wards  came  to  his  hands,  which  he 
could  lawfully  so  apply,  and  the  assignee  took  the  claim  sub- 
ject to  these  deductions.     Moore  v.  /Shields,  69  X.  0.  E  50. 

53.  A  guardian,  who  is  a  merchant,  may,  if  he  acts  in 
good  faith,  supply  the  necessary  wants  of  his  Wards  from  his 
own  stoic,  and  may  charge  a  reasonable  profit  upon  them. 
Ibid. 

54.  While  a  guardian  cannot  be  allowed  in  a  settlement 
with  his  wards  for  fees  paid  to  his  attorney  to  aid  him  in 
keeping  them  out  of  their  just  rights  or  in  supplying  an  un- 
certainty or  confusion  in  his  accounts,  produced  by  his  own 
negligence,  or  even  in  defending  an  action  brought  by  them 
for  a  settlement,  yet  he  may  claim  the  allowance  of  a  reason- 
able fee  paid  in  a  suit  for  the  protection  of  their  interests.  Ibid. 

55.  A  guardian  who  acted  in  good  faith  was  held  not  to 
be  responsible  for  omitting  to  collect  a  note  during  the  war, 
and  were  made  insolvent  by  its  results.  Love  v.  Logan,  69 
N.  C.  E,  70. 

50.  A  guardian  had  a  right  to  purchase  the  land  of  his 
wards  at  a  sale  by  a  clerk  and  master  of  our  former  courts  of 
equity,  made  by  order  of  such  court.  Lee  v.  Howell,  69 
N.  C.  E.  200. 

57.  Our  present  courts  have  the  power  to  order  their 
clerks  to  make  title  directly  to  a  subsequent  bona  fide  purcha- 
ser, when  it  appears  that  no  title  was  made  by  the  clerk 
and  master  to  the  first  purchaser,  or  if  made,  was  lost.     bid. 

58.  The  guardian  of  A  sells  the  land  of  his  ward  under 
an  order  of  our  late  court  of  equity,  which  is  purchased  by 
B,  the  mother  of  A.  B  intermarries  with  0,  and  with  her 
husband,  conveys  the  land  in  trust  to  secure  the  payment  of 
the  purchase  money.  C  afterwards  becomes  guardian  of  A, 
and  directs  the  trustee  to  sell  the  land  and  to  pay  the  pur- 
chase money,  which  is  done,  and  O  buys  it.  A  brings  suit 
for  the  land,  or  for  its  value,  and  for  the  rents,  &c. :  held, 
that  the  only  interest  that  A  had  in  the  land  was  as  a  secur- 
ity for  debt,  and  that  the  action  could  not  be  maintained. 
Winborne  v.  White,  09  N.  0.  E.  253. 

59.  When  a  guardian  has  a  settlement  with  his  ward, 
shortly  after  the  ward's  majority,  in  the  absence  of  her  ad- 


228  GUARDIAN  AND  WAED. 

visers  and  friends,  the  law,  founded  in  public  policy,  pre- 
sumes fraud,  and  throws  the  burden  of  rebutting  that  pre- 
sumption upon  the  guardian.  Harris  v.  Carstarplien,  69 
N.  0.  B.  416 

60.  Confederate  money  taken  ia  good  faith,  should  be 
received  at  its  scaled  value,  in  all  fiduciary  transactions : 
therefore,  a  guardian  who  paid  the  taxes  due  from  his  ward's 
estate,  with  his  own  Confederate  money,  can  only  receive 
credit  for  the  value  thereof  according  to  the  Legislative  scale. 
Cox  v.  Peebles,  70  N.  0.  R.  10. 

61.  Good  faith  requires  that  any  profit  which  arises  from 
a  transaction  of  the  guardian  in  the  management  of  the  ward's 
estate,  must  be  for  the  benefit  of  the  ward,  and  not  of  the 
guardian.     Ibid. 

62.  A  defendant,  in  the  exercise  of  due  diligence,  in  col- 
lecting a  bond  due  a  ward,  is  not  required  to  foresee  the  fact, 
that  under  the  construction  given  to  the  Homestead  law,  it 
would  be  held  to  apply  to  pre-existing  debts ;  nor  the  fact 
that  a  levy  before  the  adoption  of  the  Constitution  would 
hold  good,  notwithstanding  the  provisions  of  such  law.  Wells 
v.  Sluder,  TON.  CE.55. 

63.  A  party,  who  at  first  refuses  to  receive  Confederate 
money  in  payment  of  a  debt  clue  a  ward,  is  afterwards  pre- 
vailed upon  so  to  do,  by  the  declarations  of  the  obligor, 
yields  to  a  groundless  fear,  and  is  liable  to  the  ward  for  the 
amount  so  received.     Hid. 

64.  A  guardian  who,  in  1862,  exchanged  North  Carolina 
six  percent,  bonds  for  North  Carolina  eights,  when  his  wards 
were  of  full  age,  aud  afterwards  received  the  semi-annual 
interest  on  such  bonds,  and  gave  the  guardian  their  receipt 
for  the  same  when  the  bonds  were  turned  over  to  them,  is 
not  responsible  for  the  same,  though  they  were  lost  by  the 
results  of  the  war.     Pearson  v.  Caldwell,  70  N.  C.  E.  291. 

65.  An  action  against  a  guardian  for  an  account  and  set- 
tlement with  his  ward,  should  commence  in  the  probate 
court;  the  mistake  in  the  jurisdiction  (as  an  irregularity)  is 
cured  either  by  waiver,  as  when  defendaut  answers  the  com- 
plaint, or  otherwise  pleads  to  the  merits,  or  by  the  operation 
of  remedial  statutes.     Clodfelter  v.  Post,  70  N.  C.  E.  733. 

66.  When  the  defendant  in  1854  took  the  guardianship 
of  the  plaintiff,  who  as  heir  of  a  soldier  killed  in  the  Mexican 
war,  was  entitled  to  a  pension  from  the  U.  S  government, 
which  facts,  within  the  knowledge  of  the  guardian,  were  suf- 
ficient to  put  him  on  enquiry  as  to  such  pension,  and  where 
the  guardian  had  been  remiss  in  other  duties :  held,  that  he 


GUARDIAN  AND  WARD.  229 

was  responsible  for  such  pension  from  1854,  until  bis  ward 
became  of  age.     Ibid. 

See  (Confederate  Money  8.  9.) 

II.     SUIT  ON  GUARDIAN  BOND. 

1.  In  an  action  on  a  guardian  bond,  the  right  of  the  rela- 
tor to  sue  under  the  former  system  of  practice  and  pleading 
can  be  raised  by  demurrer,  or  on  the  plea  of  general  issue. 
Cobb  v.  Hardin,  67  N.  0.  R.  472. 

2.  Under  the  old  system,  a  trustee  appointed  by  a  Court 
of  Equity  is  a  proper  relator  in  an  action  on  a  guardian  bond 
to  recover  the  trust  fund.     Ibid. 

3.  A  bond  may  be  given  as  a  security  for  equitable  rights, 
and  the  non-performance  of  the  decree  of  a  Equity  in  relation 
thereto  may  be  assigned  as  a  breach  of  the  bond.     Ibid. 

4.  An  instrument  intended  as  a  guardian  bond  in  which 
the  names  of  the  wards  are  recited  in  the  wrong  place,  and  in 
another  part  of  said  bond  the  names  are  inserted  A,  B  and 
others,  wards,  by  a  just  and  liberal  construction  is  sufficient 
as  a  guardian  bond  under  the  statute.  Sprinkle  v.  Martin* 
69  N.  0-  R.  175. 

5.  In  a  suit  on  a  guardian  bond,  evidence,  that  the  Court 
House  of  the  county  in  which  the  bond  was  taken,  was  burn- 
ed with  many  official  papers  in  18(32,  and  that  search  had 
been  made  among  the  papers  of  a  deceased  person  who  was 
Clerk  at  the  time  of  the  burning,  and  who  was  in  the  habit 
of  keeping  some  of  the  official  papers  at  his  residence,  and 
that  no  bond  given  by  the  guardian  of  the  plaintiff  had  been 
found,  was  held  sufficient  to  authorize  the  introduction  of 
secondary  evidence  of  the  execution  and  contents  of  the  bond 
declared  on.     Harrell  v.  Hare,  70  N.  C.  R.  058. 

G.  A  certified  copy  of  the  extracts  from  the  records  of  the 
County  Court,  that  at  August  Term,  1850,  the  guardian  of 
the  plaintiff  and  other  minors,  renewed  his  bond  by  entering 
into  another  bond  in  the  sum  of  $3,000  with  the  present  de- 
fendant and  aimt  her  as  his  sureties,  is  competent  evidence  to 
prove  the  existence  and  due  execution  of  the  bond  declared 
upon  ;  and  a  certified  copy  of  a  guardian's  return  is  also  com- 
petent as  tending  to  establish  the  amount  due  at  the  date  of 
the  return.     Ibid. 


230  HABEAS  COEPUS. 


HABEAS    CORPUS. 

1.  In  deciding  questions  which  arise  under  writs  of  habeas 
corpus,  the  judiciary  may  review  and  control  the  action  of 
the  Governor  in  regard  to  points  of  law ;  but  cannot  inter- 
fere with  such  action  in  regard  to  any  matter  within  the  dis- 
cretion of  the  Governor.  In  the  matter  of  Hughes,  Phil.  L. 
E.  58. 

2.  Tu  deciding  upon  a  question  of  false  imjyrisonmcnt, 
raised  under  a  writ  of  habeas  corpus,  the  judge  may  investi- 
gate the  validity  of  an  order  of  cou't  relied  upon,  as  here,  to 
prove  the  petitioners  to  be  apprentices  of  him  who  detains 
them.     In  the  matter  of  Ami) rose,  Phil.  L.  E.  1)1. 

3.  By  Pearson,  C.  J.,  (the  other  Justices,  p.  820,  concur- 
ring.) A  court  cannot  review  executive  action  declaring  a 
county  to  be  in  a  state  of  insurrection,  under  Art.  XII,  sec. 
o,  of  the  Constitution  and  the  Act  of  18G9-'70,  chapter  27. 
Moore,  ex  parte,  04  N.  0.  E.  807. 

4.  Under  those  provisions  the  executive  may  arrest  per- 
sons by  military  force.     Ibid.,  G4  N.  0.  R.  808. 

5.  Those  provisions  do  not  suspend  the  privilege  of  the 
writ  of  habeas  corpus,  and,  therefore,  under  that  writ,  per- 
sons arrested  must  be  surrendered,  for  examination,  &c,  to 
the  civil  authorities.  Ibid  and  ex  parte  Kerr,  04  N.  C.  E. 
808- -819. 

6.  Where  a  military  officer  detaining  persons  arrested  in 
counties  declared  to  be  in  insurrection,  as  above,  answered 
to  a  wiit  of  haheas  corpus,  that  he  held  them  under  the  or- 
ders of  the  Governor,  who  had  also  ordered  him  not  to  obey 
the  writ:  held,  that  such  return  was  a  sufficient  excuse,  under 
the  act  of  18G8-'69,  ch.  1,  sec  15,  and,  therefore,  that  such 
officer  was  not  liable  to  be  attached.  Ibid,  04  N.  0.  E.  809 
and  815. 

7.  The  attachment  warranted  by  that  act  is  not  upon  the 
footing  of  punishment  for  a  contempt  of  the  Judge  granting 
the  writ,  but  on  that  of  a  substitute  for  the  fine  inflicted  un- 
der the  former  Habeas  Corpus  act.  Ibid,  and  04  jST.  C.  E. 
819. 

8.  Under  the  circumstances  of  an  arrest  and  order  by  the 
Executive,  such  as  above,  it  is  improper  to  order  that  the 
enforcement  of  the  writ  by  the  Judiciary  shall  be  committed 
to  a  sheriff  of  the  county  declared  to  be  in  insurrection  ;  or 
by  calling  out  the  posse  comitatus  of  such  county  ;  but,  inas- 
much as  the  whole  power  of  the  counties  of  the  State  is  un- 


HABEAS  COEPUS-  231 

der  the  control  of  the  Executive,  the  proper  direction  of 
further  process  is  to  the  latter, — upon  whose  failure  to  give 
it  effect,  the  power  of  the  Judiciary  is  exhausted,  farther  re- 
sponsibility therein  remaining  with  the  Executive.  Ibid, 
and  Ex  parte  Kerr,  64  N.  0.  E.  810  and  818. 

9.  Under  the  Habeas  Corpus  Act,  a  Judge  has  no  power 
to  order  the  arrest  of  the  Governor  of  the  State.  Ibid,  and 
04  N.  0.  E,  815. 

10.  By  Pearson,  0.  J.  One  who  has  petitioned  for  a  writ 
of  Habeas  Corpus  may  withdraw  his  application  whenever  he 
chooses.     State  v.  Wiley,  04  N.  C.  E.  823. 

li.  Statement  of  the  grounds  that  justify  the  holding  to 
bail  of  parties  charged  with  the  commission  of  murder.  Ibid, 
and  State  v.  Tarpley,  04  N  C.  E.  824  and  820. 

12.  By  Dick  and  Settle,  J  J.  The  Chief  Executive  of 
the  State  is  not  liable  to  arrest  for  acts  done  by  him  in  the 
discharge  of  what  he  may  consider  to  be  his  Executive  duties. 
State  v.  Holden  and  others,  04  N.  C.  E.  820. 

13.  Brooks,  J.  Judges  of  the  Federal  Courts  have 
jurisdiction  to  issue  writs  of  Habeas  Corpus  in  cases  where 
the  petitioners  are  imprisoned  by  State  officials  without  due 
2)rocess  of  law.  Ex  parte  Moore  and  others,  04  X.  C.  E.  832. 

14.  Such  Judges  may  require  security  of  the  peace  against 
persons  threatening  to  repeat  such  imprisonment.     Ibid. 

15.  Where  the  officer  who  held  the  petitioners,  previous 
to  the  return  day  of  the  Federal  writs  of  Habeas  Corpus  re- 
turned the  petitioners  before  a  State.  Judge,  in  accordance 
with  State  writs  previously  issued  for  the  same  cause,  but 
which  the  State  Judge  had  heretofore  not  been  able  to  en- 
force, and  had  so  declared  himself  to  be  :  held,  that  he  was 
not  liable  to  be  attached  by  the  Federal  Judge  for  contempt 
in  so  doing.     Ibid. 

10.  The  act  of  1868-'69,  ch.  110,  sec.  37,  was  not  intend- 
ed to  interfere  with  any  right  of  the  State  to  use  condemned 
prisoners  as  witnesses  whenever  the  Solicitor  deemed  it  for 
the  interest  of  the  State  so  to  do :  therefore  held,  to  be  error 
in  the  Court  below  to  refuse  a  petition  for  a  habeas  corpus  ad 
testificandum,  to  bring  up  a  prisoner  confined  in  jail  under 
sentence  of  death  for  murder,  in  order  that  such  prisoner 
might  testify  in  a  trial  for  felony  then  pending  in  said  Court. 
State  v.  Adair,  08  X.  C.  E.  08." 


HIGHWAY. 
See  (Road.) 


232  HOMESTEAD,  &c. 

HOMESTEAD  AND  PERSONAL   PROP- 
ERTY EXEMPTION. 

1.  Semhle,  that  the  provision  for  a  homestead  in  the  pres- 
ent Constitution  of  the  State,  is  not  unconstitutional,  and 
has  a  retrospective  effect.  Jacobs  v.  Smalhvood,  63  N.  0  R.  112 

2.  The  provisions  of  the  State  Constitution  giving  a 
homestead  and  other  exemptions,  apply  to  pre-existing  con- 
tracts, as  well  as  to  such  as  were  entered  into  afterwards;, 
and  do  not  thereby  violate  the  provisions  of  the  Constitution 
of  the  United  States  in  regard  to  the  obligation  of  contracts. 
Hill  v.  Kesler,  63  N.  C.  R  437. 

3.  Specific  liens  previously  obtained  (as  here,  by  levy,)  are 
not  divested  by  the  provision  for  a  homestead  in  the  Consti- 
tution: therefore,  where  a  levy  upon  land  was  made  in  De- 
cember, 1867,  and,  upon  a  Yen.  Ex ,  issued  in  1869,  the 
sheriff  returned ''no  goods,  chattels,  lands  or  tenements,  to 
be  found  in  my  county,  over  the  homestead."  Held,  that  he 
was  liable  to  be  emerced  for  an  insufficient  return.  McKei- 
than  v.  Terry,  64  BT.  C.  R.  25. 

4.  The  minor  heirs  of  one  who  died  before  the  adoption 
of  the  Constitution  of  1868,  are  not  entitled  to  the  home- 
stead provided  therein.     Sluder  v.  Rogers,  64  N.  C.  R.  281). 

5.  A  conveyance  in  trust  to  pay  debts,  made  before  the 
adoption  of  the  Constitution,  gives  to  the  creditors  secured  a 
lieu  superior  to  the  homestead.     I/Ad. 

6.  When  the  owner  of  land  does  not  petition  for  a  home- 
stead, it  is  the  duty  of  the  sheriff,  or  other  officer  who  has  an 
execution  against  him,  to  have  it  laid  off  under  the  act  of 
lS68-'9,  ch  139,  at  the  expense  of  the  creditor,  and  if  he 
refuse  to  pay  or  tender  the  fees  of  the  officer,  he  will,  by  vir- 
tue of  the  Code  of  Civil  Procedure,  sec.  555,  be  justified  in 
refusing  to  execute  the  process.     Lute  Eeilly,  65  N.  C.  R  20. 

7.  The  act  of  1869-'70,  ch.  121,  exempting  from  execution 
the  reversionary  interests  in  homesteads,  is  constitutional. 
Poe  v.  Hardie,  65  JST.  C.  R.  447. 

8.  The  object  of  this  act  was  to  protect  the  owner  thereof 
against  any  vexatious  litigation  which  might  be  instituted  by 
the  purchaser  of  reversionary  interest     Ibid. 

9.  The  estate  in  the  homestead  is  a  determinable  fee,  and 
the  owner  thereof  is  not  impeachable  for  waste.     Ibid. 

10.  A  sheriff  is  not  required  to  sell  the  excess  of  realty 
beyond  the  homestead,  or  to  lay  off  a  homestead,  until  the- 
plaintiff  has  paid,  or  offered  to  pay,  his  fees  for  so  doing. 
Taylor  v.  Rhyne,  65  N.  C.  R.  530. 


HOMESTEAD,  &c.  233 

11.  Upon  the  death  of  a  man  seized  in  fee  of  land,  leav- 
ing a  widow  and  minor  children,  without  having  had  a  home- 
stead laid  off,  the  double  rights  of  dower  and  homestead,  do 
not  attach  together  simul  et  semel,  either  in  the  widow  or 
widow  and  children,  but  dower  having  been  assigned  to  the 
widow,  the  children  are  only  entitled  to  a  homestead  sub 
modo,  I  e.,  a  present  interest,  the  enjoyment  of  which  is  post- 
poned until  after  the  death  of  the  dowress.  Watts  v.  Leggett, 
00  X.  0.  E  107. 

12.  The  manifest  purpose  of  the  act  of  1868-'69,  oh.  137, 
is  to  prevent  the  widow  and  minor  children  from  being  pre- 
judiced, by  the  omission  of  one  entitled  to  a  homestead,  to 
cause  it  to  be  laid  off  in  his  life-time.  It  cannot  be  supposed 
that  the  effect  of  the  statute  is  to  go  beyond  the  Constitu- 
tion, when  its  professed  object  is  to  carry  into  effect  its  pro- 
visions.    Ibid. 

13.  A  homestead  and  personal  property  exemption,  uuder 
Art.  X  of  the  Constitution  aud  the  laws  passed  in  pursuance 
thereof,  cannot  be  sold  under  an  execution,  issued  upon  a 
judgment  rendered  in  an  action  ex  delicto.  Dellinger  v. 
Tweed,  00  X.  C.  E.  200. 

14.  An  execution-debtor  is  entitled  to  a  homestead,  as 
against  an  execution,  which  bore  teste  before,  but  was  not 
levied  until  after  the  adoption  of  the  Constitution.  Ladd  v. 
Adams,  00  X.  C  E.  101. 

15.  The  personal  property  exemption,  provided  for  by 
Ait  X  of  the  Constitution  and  the  laws,  passed  pursuant 
thereto,  exists  only  during  the  life  of  the  "  homesteader"  and 
after  his  death  passes  to  liis  personal  representative,  to  be 
disposed  of  in  a  due  course  of  administration.  Johnson  v. 
Cross,  00  X.  C.  R.  107. 

10  An  execution  debtor  is  entitled  to  a  personal  property 
exemption,  notwithstanding  an  execution  issued  against  his 
property,  bore  t*ste,  before  the  adoption  of  the  Constitution, 
if  there  was  no  lew  made  until  after.  Horton  v.  Mci  all, 
00  X.  0  E  159. 

17.  Whether  a  partner,  on  a  deficiency  of  partnership 
assets  to  pay  partnership  debts,  is  entitled  to  a  personal- 
property  exemption  of  $500  out  of  such  assets,  in  preference 
to  the  said  debts,  and  whether  if  such  partner  has  individual 
property  sufficient  to  cover  such  exemption,  he  shall  be 
compelled  to  resort  to  that,  are  questions  of  great  importance 
and  deserving  serious  consideration,  but  as  the  facts  out  of 
which  they  arise  are  only  set  forth  inferentially,  this  court 
will  not  proceed  to  consider  them,  but  remand  the  cause  to 


234  HOMESTEAD,  &c 


the  end  that  the  facts  may  be  ascertained  and  the  rights  of 
the  parties  declared.     Barns  v.  Harris,  GO  JST.  0.  E.  509. 

18.  A  portion  of  the  effects  of  a  partnership  can  be  set 
aside  to  one  of  the  partners,  as  his  personal  property  exemp- 
tion, with  the  consent  of  the  other  partner  or  partners. 
Without  such  consent  it  cannot  be.  Burns  v.  Harris,  07 
NCR.  140. 

19.  Under  article  10,  of  the  Constitution,  and  the  act 
of  1808-'G9,  chap.  137,  a  homestead  may  be  laid  off  in  two 
tracts  of  laud  not  contiguous.  The  two  not  exceeding  $1,000 
in  value.     Martin  v.  Hughes,  67  X.  C.  R.  293. 

20.  There  is  nothing  in  the  Constitution  forbidding  the 
General  Assembly  from  enlarging  the  homestead  It  cannot 
reduce  what  the  Constitution  provides,  but  any  General  As- 
sembly has  the  same  power  which  the  constitutional  conven- 
tion had,  to  exempt  a  homestead,  and  has  absolute  power  to 
enlarge  the  homestead  given  by  the  Constitution  in  the  mat- 
ter of  value  or  duration  oi  estate,  subject  ouly  to  the  restric- 
tion of  the  Constitution  of  the  United  States  that  it  shall  not 
thereby  impair  the  obligation  of  the  contract.     Ibid. 

21.  A  debtor  is  entitled  to  a  homestead  in  an  equity  of 
redemption,  subject  to  the  mortgage  debts.  Cheatham  v. 
Jones,  08  N.  C.  E.  153. 

22.  A,  to  whom  a  certain  article  of  personal  property  has 
been  allotted  as  his  personal  property  exemption,  sold  and 
transferred  the  same  to  B  for  a  valuable  consideration  :  after- 
wards the  articles  having  been  seized  by  a  constable  under  an 
attachment  against  A's  property,  B  rescinds  his  contract 
with  A,  and  the  property  was  sold  by  the  officer :  held,  that 
in  a  suit  against  the  officer,  A,  the  plaintiff  had  a  right  to 
recover  the  value  of  the  property  at  the  time  of  its  seizure. 
Duvall  v  Rollins,  08  N.  C.  E.  220. 

23.  A  chose  in  action  if  selected  by  the  owner,  may  be 
allotted  as  a  part  of  the  personal  property  exemption,  secured 
to  the  citizen  by  sec.  1,  art.  10,  of  the  Constitution.  Frost 
v.  Naylor,  08  1ST.  C.  E.  325. 

24.  The  allotment  of  exempted  property  may  be  reuewed 
from  time  to  time,  so  as  to  keep  constantly  in  possession  of 
the  citizen  $500  worth  of  personal  property  for  the  comfort 
and  support  of  himself  and  family.     Ibid. 

25.  Freeholders  appointed  under  act  of  22d  August,  1 868, 
to  lay  off  a  homestead  and  allot  personal  property  exemp- 
tion, must  be  sworn,  and  it  must  appear  that  they  were 
sworn :  and  they  must  make  such  a  descriptive  list  of  the 
personal  property  as  will  enable  creditors  to  ascertain  what 


HOMESTEAD,  &c— HOMICIDE.  235 

property  is  exempted;  and  when  tbe  requirements  have  not 
been  complied  with,  their  proceedings  may  be  treated  as  a 
nullity  by  creditors.     Smith  v.  Hunt,  68  X.  0.  E  482. 

26.  A  grantor,  who  makes  a  conveyance  of  his  land,  which 
is  fraudulent  as  to  his  creditors,  does  not  thereby  forfeit  his 
right  to  a  homestead  as  to  such  creditors.  They  can  sell  un- 
der an  execution  only  the  remaining  part  of  his  land,  leaving 
the  homestead  to  be  contested  between  the  alleged  fraudulent 
grantor  and  grantee.     Crummeii  v.  Bennet,  08  N.  0.  E  ^94. 

27.  A  widow  cannot,  under  the  Constitution  and  Act  of 
1868-'69,eh.  137,  sec.  10,  have  a  homestead  laid  off  for  herself 
and  minor  children  after  the  death  of  her  husband  when  he 
died  without  leaving  debts.     Hager  v.  ISixon,  69  N.  O  E.  108. 

28.  Before  the  Act  of  1868,  the  owner  of  laud  was  not  re- 
stricted by  the  Constitution  in  the  choice  of  his  homestead  to 
the  tract  upon  which  he  resided,  nor  to  contiguous  tracts,  but 
tbe  same  might  have  been  assigued  from  any  land  of  the  re- 
quired value.     Mayko  v.  Cotton,  69  N.  0.  E.  289. 

29.  The  homestead  laws  of  North  Carolina  do  not  impair 
the  obligation  of  contracts,  and  are  not  unconstitutional. 
Garrett  v.  Chesire,  69  N.  C.  E.  396. 

30.  Our  homestead  law  is  not  an  increase,  but  a  restric- 
tion upon  former  exemptions,  and  they  were  not  made  to  de- 
feat debts,  but  to  secure  necessaries  and  comfort  to  our  citi- 
zens.    Ibid. 

31.  A  rule  on  a  Sheriff  to  show  cause  why  he  has  not 
obeyed  the  mandate  in  an  execution  and  sold  certain  land, 
and  the  reversionary  interest  therein,  is  well  answered,  by 
showing  that  the  land  had  been  assigned  as  a  homestead,  and 
by  pleading  the  act  of  1870-'71,  forbidding  the  sale  of  the  re- 
versionary interest,  and  the  rule  must  be  discharged.  Jones 
v.  Wagoner,  70  X.  C.  E  322. 


HOMICIDE. 

1.  In  a  case  where  the  facts  were,  that  the  prisoner,  a 
vslave,  was  dancing,  singing  and  making  a  considerable  noise, 
with  other  slaves,  between  the  negro-houses  and  the  over- 
seers bouse,  which  were  about  thirty  feet  apart;  that,  upon 
the  overseer,  (the  deceased,)  an  elderly  man,  ordering  them 
to  stop  the  noise,  all  did  except  the  prisoner,  who  upon  being 
again  ordered  to  stop,  returned  an  answer  which  offended  the 
deceased;   that  the   latter  replied  "it  you  say  that  again,  I 


236  HOMICIDE. 

will  mash  your  mouth,"  whereupon  he  repeated  the  words, 
dancing  the  while  with  his  face  towards  the  deceased,  but 
retreating  towards  the  negro-houses ;  that  the  deceased  then 
walked  towards  him  with  a  stick  (a  deadly  weapon)  in  his 
hand,  and  struck  him  with  it  upon  the  head,  twice ;  and 
thereupon  the  prisoner  wrenched  the  stick  from  the  deceased, 
and  struck  him  one  blow  with  it  with  his  utmost  strength, 
and  fled  ;  the  deceased  falling,  and  dying  in  a  few  moments  : 
hfid,  that  the  killing  was  manslaughter,  and  not  murder. 
State  v.  Brodnax,  Phil  L.  R.  41. 

2.  If  one  lay  poison  for  another,  and  he  or  a  third  person 
take  it  and  death  result,  it  is  murder,  both  in  the  principal 
and  accessories  before  the  fact.  State  v.  Fulkerson,  Phil.  L. 
R.  233 

3.  Where  one  who  had  been  insulted  ran  a  short  distance 
to  his  house  to  procure  a  gun,  and  then  pursued  the  deceased, 
(who  had  ridden  off,)  in  order  to  exact  an  apology,  or  foiling 
in  that,  to  do  him  great  bodily  harm,  or  kill  him  :  held,  that 
if  upon  his  approach  the  deceased  turned  upon  him,  putting 
his  hand  to  his  side  as  if  to  draw  a  weapon,  and  was  there- 
upon killed  by  a  blow  of  the  gun,  the  prisoner  was  guilty  of 
murder.     State  v.  Owen,  Phil.  L.  R.  425. 

4.  Where  the  nurse  of  an  infant,  knowing  that  laudanum 
was  poison  and  likely  to  kill,  gave  the  child  enough  to  kill 
it :  held,  (nothing  else  appearing  to  quality  the  presumption 
of  law)  that  she  was  guilty  of  murder.  State  v.  Leak,  Phil. 
L.  R.  450. 

5.  Upon  a  trial  for  murder,  the  fact  of  killing  with  a 
deadly  weapon  being  admitted  or  proved,  the  burden  of  show- 
ing any  matter  of  mitigation,  excuse  or  justification,  is  thrown 
upon  the  prisoner.     State  v.  Willis,  63  N.  0.  R-  26. 

6  It  is  incumbent  on  the  prisoner  to  establish  such  mat- 
ter, neither  beyond  a  reasonable  doubt  nor  according  to  the 
preponderance  of  testimony,  but,  to  the  satisfaction  of  the 
jury.     Ibid. 

7.  Where  one  who  suspected  his  wife  of  being  unfaithful, 
followed  her  stealthily  to  her  place  of  assignation,  and  find- 
ing her  in  company  with  the.  person  of  whom  he  was  jealous, 
slew  the  latter  :  held,  that  it  was  murder.  State  v.  Avery, 
64  N.  0.  R.  608. 

8.  In  a  case  where  was  some  evidence  tending  to  show 
that  a  person  who  interferred  to  prevent  the  prisoner  from 
shooting  another,  had  been  killed  accidentally,  tne  Judge 
who  presided  at  the  trial  instructed  the  jury.  "If  one  is 
about  to  do  an  unlawful  act,  and  a  third  party  interferes  to 


HOMICIDE.  237 

prevent  it,  and  is  killed,  it  is  murder:''''  held,  that  as  this  pro- 
position included  cases  of  accidental  homicide,  it  was  erro- 
neous.    State  v.  Shirley,  64  N.  C.  R.  6L0. 

9.  A  number  of  Indians  had  been  together  at  a  dance- 
house,  and  a  right  had  occurred  there,  to  which  the  prisoner 
and  the  deceased  were  parties;  at  the  breaking  up  of  the 
dance,  the  prisoner  and  another,  who  was  charged  with  the 
murder,  were  walking  together  towards  their  homes,  when 
the  deceased  came  up,  and  another  right  ensued,  between  the 
prisoner  and  his  companion  on  one  side,  and  the  deceased, 
upon  the  other,  in  the  course  of  which  the  killing  occurred: 
held,  that  these  tacts  constituted  no  evidence  of  a  combina- 
tion, between  the  persons  charged,  to  commit  the  homicide: 
That  it  was  error  to  instruct  the  jury,  that  if  there  were  pre- 
vious malice  on  the  part  of  the  prisoner  towards  the  deceased, 
then,  even  in  case  the  prisoner  fought  in  self-defence,  he  was 
guilty  of  murder;  and,  as  the  Court  to  which  the  prisoner 
appealed  could  not  tell  how  much  the  latter  may  have  been 
prejudiced  by  the  charge,  even  where  the  verdict  was  for 
manslaughter  only,  a  new  trial  should  be  granted.  State  v. 
Tachanatah,  04  N.  C.  R.  614. 

10.  If  A  attempts  to  pursue  B  into  a  house,  and  the  latter 
shuts  the  door  so  that  A  cannot  enter,  and  A  attempts  to 
break  the  door  open  with  an  axe,  and  B  opens  the  door,  when 
he  is  collared  by  A,  and  a  fight  ensues,  and  B  is  killed  by  a 
deadly  weapon,  it  is  murder.  State  v.  llargett,  05  N.  C.  R. 
069.  " 

11.  If  two  men  fight  upon  a  sudden  quarrel,  and  one  kills 
the  other,  the  chances  being  equal,  this  constitutes  man- 
slaughter.    State  v.  Massage,  05  N.  C.  R  480. 

12.  The  question  ot  "cooling  time,"  is  a  question  of  law 
to  be  decided  bv  the  Court,  and  not  a  question  for  the  jury. 
Mate  v.  Moore,  69  N.  C.  R.  267. 

13.  If  such  a  question  be  left  to  the  jury,  and  they  decided 
it  as  the  Court  should  have  decided  it,  this  error  is  no  cause 
for  a  new  trial.     Ibid. 

14.  The  separation  of  two  persons  engaged  in  fist-fight, 
which  eventually  terminates  in  a  homicide,  to  justify  a  verdict 
of  murder,  the  interval  must  be  for  a  time  sufficient  for  the  pas- 
sions excited  by  the  fight  to  have  subsided,  and  reason  to  have 
resumed  its  sway.  Hence,  where  one  witness  testilied  that  the 
prisoner  was  "absent  no  time,"  and  another,  that  after  the 
first  fight  he  started  to  go  home,  and  looking  back  the  parties 
were  again  lighting:  held,  there  was  not  such  sufficient  cool- 
ing time  as  to  justify  a  verdict  of  murder.     Ibid. 


238 


HUSBAND  AND  WIFE— I. 


HUSBAND    AND    WIFE. 


I.     Of  marriage. 
II.     Husl tand's  interest  in  his  wife's 

property. 
III.     Wife's  power  over  her  separate 

estate. 


IV.     Agreement    between    husband 

and  wife. 
V.     Conveyances  by  them. 
VI.     When  wife  is  supposed  to  act 

under  husband's  coertiou. 


I.     OF  MARRIAGE. 

1.  Where  a  marriage  has  been  solemnized  according  to 
the  laws  of  another  one  of  the  United  States,  between  per- 
sons free  to  marry  according  to  such  laws,  and  the  parties 
afterwards  for  several  years  conduct  themselves  as  husband 
and  wife,  having  children,  &c,  it  seems  that  an  indictment 
for  fornication  and  adultery  is  not  the  proper  method  of  test- 
ing the  validity  of  such  marriage.  State  v.  Schlachter,  Phil. 
L.  R.  520. 

2.  A  couple  domiciled  in  New  York,  intermarried  there  in 
1856,  and  subsequently  (before  1861)  removed  to  North 
Carolina;  in  January,  1804,  the  wife  removed  again  to  New 
York,  in  December,  1864,  she  obtained  a  divorce,  and  in 
January,  1865,  remarried,  (both  acts  being  in  accordance 
with  the  laws  of  New  York);  afterwards  she  returned  to 
North  Carolina  with  her  second  husband,  and  they  lived 
together  as  man  and  wife :  held,  that  there  was  nothing  in 
the  doctrines  of  Irby  v.  Wilson,  1  1).  &  B.  568,  to  impeach 
such  divorce  and  second  marriage,  and  that  it  seems  that  the 
marriage,  being  in  accordance  with  the  laws  of  the  State 
where  it  was  solemnized,  cannot  be  impeached  in  the  courts 
of  another  State.     Ibid. 

3.  The  prisoner  and  a  woman  offered  as  a  witness  in  his 
behalf  having  lived  together  as  husband  and  wife  while  they 
were  slaves,  and  having  subsequently  observed  the  ceremonies 
required  by  the  Act  of  1866,  ch  40,  sec.  5:  held,  that  they 
were  legally  married,  and  her  testimony  properly  excluded. 
State  v.  Harris,  63  N.  C.  R.  1. 

4.  It  is  competent  for  the  Legislature,  by  retrospective 
legislation,  to  give  validity  to  a  marriage  which  is  invalid  by 
reason  of  the  non-observance  of  some  solemnity  required  by 
statute;  aliter  where  such  marriage  is  a  nullity,  as  for  want 
of  consent,  &c.     Cooke  v.  Cooke,  Phil  L.  R.  583. 

5.  A  marriage  solemnized  upon  the  15th  day  of  June, 
1865,  in  Wake  county,  by  one  who  during  the  existence  of 
the  Confederate  government  had  been  appointed  a  justice  of 


HUSBAND  AND  WIFE— II— III.  230 

the  peace,  is  within  the  provisions  of  the  ordinance  of  Octo- 
ber 18th,  1865,  entitled,  An  ordinance  declaring  what  laws, 
and  ordinances  are  in  force,  &c,  and  is  rendered  valid  there- 
by.    Ibid. 

See  (Indians  5,  0.) 

II.     HUSBAND'S  INTEREST  IN  HIS  WIFE'S  PROPERTY. 

1.  Where  a  married  woman,  entitled  to  personal  property 
in  remainder  alter  a  life  estate,  dies  before  the  tenant  for 
life,  upon  the  death  of  such  tenant,  her  administrator  will 
take  it  for  the  benefit  of  her  husband.  If  her  husband  then 
die  leaving  an  executor,  the  latter  will  take  the  benefical 
interest.     Colson  v.  Martin,  Phil.  Eq.  li.  125. 

2.  A  tenant  by  the  curtesy  consummate  may  sell  his 
estate  notwithstanding  the  act,  Rev.  Code,  chap  50,  sec.  1. 
Long  v.  Graehcr,  04  N.  C.  R.  431. 

3.  A  tenant  by  the  curtesy  initiate,  has  a  right  to  sue 
alone  tor  the  possession  of  his  wife's  land,  and  for  damages 
for  the  detention  of  it.     Wilson  v.  Aients,  70  N.  0.  R.  670. 

4.  xV  complaint  by  a  husband  which  states  that  he  was 
married  to  his  wife  in  1841,  and  that  he  had  by  her  several  liv- 
ing children,  and  that  she  acquired  the  land  in  question  by  a 
deed  executed  to  her  in  1840,  is  sufficient  to  show  his  title  as 
tenant  by  the  curtesy  initiate  of  the  land;  and  the  tact  that 
the  act  of  1848,  (Battle's  Eev.  Ch.  69,  sec.  33,)  deprives  him 
of  the  power  to  lease  the  land,  without  the  consent  of  his 
wife,  will  not  prevent  his  recovery,  of  the  land  by  an  action 
under  the  C.  C.  P.,  without  joining  his  wife  as  a  party. 
Ibid. 

III.     WIFE'S  POWER  OVER  HER  SEPARATE  PROPERTY. 

1.  If  one,  who  has  a  general  power  over  an  estate,  exer- 
cises it  for  purposes  regarded  as  secondary,  a  Court  of  Equity 
will  hold  snch  estate  as  thereby  rendered  liable  to  all  the  usual 
incidents  of  property.     Rogers  v.  Ilinton,  Phil.  Eq.  R.  101. 

2.  Therefore,  where  a  feme  covert,  who  had  a  separate  es- 
tate, with  a  general  power  of  appointing  the  same  by  deed  or 
will,  disposed  of  such  estate,  to  various  devisees  and  legatees, 
subjecting  expressly  only  a  portion  of  it  to  the  payment  of 
ber  debts:  held,  that  her  creditors  had  a  right  to  resort  to 
the  whole  estate  for  their  satisfaction.     Ibid. 

3.  Where  a  feme  covet,  who  had  a  separate  estate  of  realty 
arid  personalty,  with  a  general  power  of  appointing  the  same 
by  deed  or  will,  disposed  of  such  estate  by  will  to  various  de- 


240  HUSBAND  AND  WIFE— III.— IV. 

visees  and  legatees,  subjecting  expressly  -only  a  portion  of  it 
to  the  payment  of  her  debts:  held,  that  her  creditors  had  a 
right  to  resort  to  the  whole  estate  for  their  satisfaction.  Ro- 
gers v.  Hinton,  63  ST.  0.  R.  78. 

4.  Also,  that  there  is  no  distinction  in  this  respect  be- 
tween the  realty  and  the  personalty.     Ibid. 

5.  Where  land  was  bought  with  money  forming  a  portion 
of  the  separate  estate  of  a  wife,  and  by  mistake  the  title  was 
made  to  the  husband,  and  subsequently  the  land  was  sold  un- 
der execution  by  creditors  of  the  husband,  and  was  bought  by 
them,  with  notice,  dec:  held,  that  upon  application  by  the 
wife,  the  purchasers  would  be  declared  trustees  for  her,  and 
whether  they  purchased  with  notice  or  without,  was  immate- 
rial.    Whitehead  v.   Whitehead,  64  N.  0.  R  538. 

6.  The  separate  estate  of  a  feme  covert,  is  chargeable  with 
her  contracts,  for  money  borrowed  with  the  assent  of  her 
trustee,  upon  the  credit  aud  for  the  improvement  of  such  es- 
tate, although  the  estate  is  not  charged  by,  or  referred  to,  in 
the  contract.     Withers  v.  Sparrow,  66  N.  C.  R.  129. 

See  (Trusts  and  Trustees,  26,  27.) 

IV.    AGREEMENT  BETWEEN  HUSBAND  AND  WIFE. 

1.  Articles  of  separatiou  between  husband  and  wife, 
whether  entered  into  before  or  after  the  separation,  are 
against  law  and  public  policy,  and  therefore  void*  Collins  v. 
Collins,  Phil  Eq.  R.  153. 

2.  Where  a  man,  upon  eve  of  marriage,  agreed  with  his 
intended  wife  that  a  previous  transaction,  by  "which  he  had 
mortgaged  a  certain  tract  of  land  to  one,  who  was  a  trustee 
for  children  of  hers,  in  order  to  secure  a  part  of  the  purchase 
money  diie  for  such  land,  should  be  cancelled,  and  that,  in 
lieu  of  what  was  due,  which  exceeded  the  then  value  of  such 
land,  the  land  should  be  conveyed  to  such  children  ;  and  this 
was  done  :  held,  that  this  was  not  an  act  of  which  creditors 
of  the  husband  could  complain ;  and  also,  that  there  was 
nothing  in  the  Statute  [Rev.  Code,  c.  37,  s.  24,]  that  required 
such  agreement  to  be  in  tvnting.  Creedle  v.  Carawan,  64 
N.  C.  C.  422. 

3.  When  a  marriage  contract  is  in  these  words,  viz: 
"  That  the  said  J  H,  is  entitled  to  have  the  entire  disposal 
of  her  own  property,  as,  her  own  judgment  may  see  proper, 
at  her  death.  If  she  should  die  before  the  said  D  W,  then 
she  doth  give  aud  allow  him  to  hold  for  his  benefit  all  my 
estate,  real  and  personal  all  his  life  time,  and  at  his  death  the 


HUSBAND  AND  WIFE— IV— V.  241 

said  property  to  be  divided  up,  as  I,  J  H  hath  directed  it  to 
be  done,  at  my  death,  This  obligation  to  be  kept  iu  good 
faith  by  both  parties."  It  was  held,  that  the  legal  effect  of 
the  contract  was  to  give  to  W  D,  (the  husband)  the  use  of 
the  property  during  his  life,  and  after  his  death  to  revert  to 
his  wife,  the  said  J  H.     Morrison  v.  White,  07  N.  0.  E.  253. 

4.  Where  there  is  no  express  contract  between  husband 
iind  wife,  the  law  of  the  matrimonial  domicil  controls,  as  to 
the  rights  of  property,  there  situate,  and  as  to  personal  pro- 
perty every  where.  Therefore,  where  a  bond  was  given  by  a 
man  to  a  single  woman,  both  parties  being  resident  iu  the 
State  of  Pennsylvania,  and  a  judgment  was  obtained  in  the 
Courts  of  this  State,  and  the  parties  afterwards  married  in 
Pennsylvania:  it  was  held,  that  the  rights  of  the  parties  in 
reference  to  said  judgment  were  governed  by  the  laws  of 
Pennsylvania,  whereby,  "All  the  estate  or  property,  which 
may  be  owned  by  any  single  woman,  continues  to  be  hers 
after  marriage."     Craeoff  v.  Morehead,  07  N.  0.  R.  422. 

5  If  a  husband  obtain  from  his  wife  a  provision  in  his 
favor  much  more  beneficial  to  him  than  that  which  was  stipu- 
lated for  him  in  an  ante-nuptial  marriage  settlement,  it  comes 
within  the  principle  applicable  to  other  intimate  fiduciary 
relations,  and  raises  a  presumption  of  fraud  unless  rebutted 
by  evidence  to  the  contrary.  McBae  v.  Battle,  09  N.  0.  R. 
98. 

6.  Since  the  act  of  1848,  a  husband  has  the  right  to  sur- 
render his  estate  as  tenant  by  the  curtesy  initiate,  and  let  it 
merge  iu  the  reversion  of  his  wife,  who,  with  the  assent  of 
her  husband,  may  sell  the  same  and  receive  the  whole  of  the 
purchase  money.     Teague  v.  Downs,  09  N.  0.  R.  280. 

7.  And  an  agreement  that  the  wife  shall  receive  such 
price  in  personal  property  and  hold  the  same  to  her  separate 
use,  to  enable  her  to  lay  it  out  in  the  purchase  of  another 
tract  of  land,  is  valid,  such  price  not  vesting  iu  the  husband, 
jure  mariti,  so  as  to  subject  the  same  to  the  claims  of  his 
creditors.     1  hid. 

See  (Trusts  and  Trustees  25,  50 ) 

V.     CONVEYANCES  BY  THEM. 

1.  By  sec.  9,  chap.  37,  of  the  Rev.  Statutes,  "  all  convey- 
ances in  writing  by  husband  and  wife  for  any  laud,  person- 
ally acknowledged  before  a  Judge,  &c,  the  wife  being  privily 
examined,  &c,  shall  be  as  valid  to  convey  the  wife's  estate 
in  such  lands  as  she  may  have,  whether  in  fee  simple  or  oth- 
10 


242  HUSBAND  AND  WIFE— V. 

envise,  as  if  it  were  done  by  fine  and  recovery,  and  if  a  com- 
missioner be  appointed  under  sec.  10  of  said  act,  to  take  such 
acknowledgment,  privy  examination,"  &c,  "it  shall  be  as 
effectual  as  if  personally  acknowledged  before  the  Judge  or 
county  court."  Revised  Statutes,  sees.  9  and  10,  chap.  37. 
Woodburne  v.  Gorrell,  66  N.  0.  R.  82 

2.  Fines  and  recoveries  are  matters  of  record  in  the  court 
of  Common  Pleas  in  England,  and  cannot  be  impeached  col- 
laterally in  an  action  ot  ejectment,  or  vacated  or  set  aside 
without  some  direct  proceeding,  instituted  for  that  purpose. 
Ibid. 

3.  In  this  State,  the  acknowledgment  and  examination  of 
a  married  woman  before  a  Judge  or  county  court,  as  the  law 
was  in  1833,  has  the  force  of,  and  is  in  fact,  a  record.  She 
cannot  be  heard  to  impeach  the  truth  of  the  record  or  vacate 
the  same,  although  the  examination  was  not  separate  and 
apart  from  her  husband,  and  she  was  subject  to  the  influence 
of  his  presence,  and  although  she  was  not  of  sound  mind 
and  could  not il  voluntarily  assent  thereto"    Ibid. 

4.  Possibly  :  When  the  examination  is  taken  by  a  com- 
missioner, a  married  woman  may  maintain  a  bill  in  equity,  to 
cancel  the  deed  on  the  ground  of  fraud,  and  a  false  certificate 
by  the  commissioners.  Yet  this  assurance  of  title,  and  con- 
veyance of  record  cannot  be  impeached  collaterally  in  an 
action  to  recover  the  laud.     Ibid. 

5.  This  proceeding  and  record  is  not  a  mere  deed,  so  far 
as  a  married  woman  is  concerned,  but  is  "  an  assurance  of 
title  by  record,"  it  is  not  a  mere  probate  for  the  sake  of  reg- 
istration, but  is  a  "  fine,"  and  puts  an  end  to  the  matter- 
Ibid. 

6.  Husband  and  wife  in  1869,  contracted  to  sell  the  land 
devised  to  the  wife  in  1855,  and  jointly  covenanted  to  make 
title  when  the  purchase  mouey  was  paid,  the  purchaser  giv- 
kig  bonds  payable  to  the  husband  alone  for  the  purchase 
money  :  held,  to  be  error  in  the  Court  below  to  condemn  this 
debt  owing  by  the  purchaser  of  the  lands,  to  the  payment  of 
a  debt  due  from  the  husband:  held  further,  that  the  wife 
was  entitled  to  be  heard  on  motion,  in  the  proceedings  sup- 
plemental to  execution,  instituted  to  subject  the  debt  owing 
for  the  land  to  the  payment  of  a  debt  owing  by  the  husband. 
Williams  v.  Green,  68  N.  C.  R.  183. 

7.  To  take  the  acknowledgment  and  private  examination 
of  a,  feme  covert  to  a  deed  conveying  her  land  is  a  judicial  act, 
■And  when  duly  taken,  the  deed  so  acknowledged  is  an  assur- 


HUSBAND  AND  WIFE— V.— INDIANS.       243 

auce  of  record,  like  a  fine  in  England.     Paul  v.  Carpenter,  70 
N.  0.  R.  502. 

8.  An  acknowledgment  and  private  examination  taken  b}r 
the  Provost  Marshal  of  the  citv  of  Newbern,  while  that  place 
was  in  possession  of  the  United  States'  military  authorities, 
in  the  absence  of  fraud  and  the  like,  is  good,  having  a  similar 
effect  with  foreign  judgments.     Ibid. 

VI.     WHEN  WIFE  IS  SUPPOSED  TO    ACT  UNDER  THE  COERTION  OF  THE  HUSBAND. 

See  (Assault  and  Battery,  15,  1(1,  17.) 


INDIANS. 

1.  The  laws  of  North  Carolina  permit  resident  Cherokee 
Indians  to  take  and  hold  land  by  grant.  Colvord  v.  Monroe, 
03  N.  C.  R.  288. 

2.  The  law  providing  that  contracts  with  Indians  shall  be 
subscribed  by  two  witnesses,  does  not  require  the  probate  for 
registration  to  be  by  both.     Ibid. 

3.  Where  one  of  the  two  witnesses  to  such  a  contract, 
stated  upon  oath  that  he  could  not  recollect  having  subscribed 
it,  it  was  competent  to  establish  that  fact  by  other  testi- 
mony.    Ibid. 

4.  The  Cherokee  Indians  who  reside  in  North  Carolina, 
are  subject  to  its  criminal  laws.  State  v.  Tavhanatah,  04  N. 
C.  K.  614. 

5.  Cohabitation  between  an  Indian  man  and  woman  ac- 
cording to  the  ancient  customs  of  their  tribe,  which  leave  the 
parties  free  to  dissolve  the  connexion  at  pleasure,  is  not  mar- 
riage, and,  therefore,  the  parties  to  such  relation,  may  be 
compelled  to  testify  against  each  other.     Ibid. 

0.  There  is  but  one  law  of  marriage  for  all  the  residents 
of  this  State.     Ibid. 


244  INDICTMENT— I. 


INDICTMENT, 


I.     When  au  indictment  will  lie  or  not. 
II.     Time  in   which   an  indictment 
will  lie. 

III.  Quashing  indictments. 

IV.  Form     and    matters    relating 


V.     Plea  of  former  acquittal  or  con- 
viction. 
VI.     Removal    of    into    the    United 

States  Courts. 
VII.     Of  the  trial,   verdict  and  judg- 


thereto.  |  ment. 

I.     WHEN  AN  INDICTMENT  WILL  LIE  OR  NOT. 

1.  The  forcible  detainer  of  personal  property  is  not  indict- 
able at  common  law.     State  v.  Marsh,  04  N.  C.  E.  378. 

2.  One  tenant  in  common  law  does  no  wrong,  (civil  or 
criminal,)  to  a  co-tenant  by  keeping  sole  possession  of,  ex.  gr., 
a  bale  ot  cotton,  even  by  force.     Ibid. 

3.  A  husband  who  wilfully  abandoned  his  wife  prior  to 
the  ratification  of  the  act  of  1869,  chap.  209,  (Bat.  Eev.,  ch. 
32,  sec.  120,)  cannot  be  convicted  therefor.  Justices  of  the 
Peace  have  concurrent  jurisdiction  with  the  Superior  Courts 
under  said  act.     State  v.  Deaton,  06  N.  0.  E.  493. 

4.  The  act  of  1868-'09,  chap.  18,  (Bat,  Rev.,  ch.  12,  sec. 
117,)  creates  two  offences :  1st.  Hunting  on  the  Sabbath 
with  a  dog  2d.  Being  found  off  one's  premises  having  a 
shot-gun,  rifle  or  pistol.  Therefore,  a  conviction  is  sustain- 
able under  au  indictment  charging  the  defendant  with  being 
"  found  off  his  premises  on  the  Sabbath  day,  having  with 
him  a  shot-gun,  contrary  to  the  form  of  the  statute,"  &c. 
State  v.  Howard,  67  N.  0.  E.  24. 

5.  General  words  in  a  statute  do  not  authorize  an  act  to 
be  done,  which  is  expressly  prohibited  by  a  former  statute ; 
plain  and  positive  words  must  be  used.  State  v.  A.  J.  Jones, 
67  N  0.  E.  242. 

6  The  act  of  the  General  Assembly,  ratified  February 
16th,  1871,  requiring  "the  President  and  Directors  of  the 
several  Railroad  Companies  of  this  State,  upon  demand,  to 
account  with  and  transfer  to  their  successors,  all  the  money, 
books,  aud  choses  in  action  belonging  to  such  company,"  is 
sufficiently  general  in  its  language,  taken  by  itself,  to  embiace 
bonds  of  the  State,  but  the  said  act  must  be  taken  and  con- 
strued in  connection  with  two  other  acts,  viz:  Act  Februaiy 
5th,  1870,  and  act  March  8th,  1870.  Thus  taken  aud  con- 
strued, the  acts  of  February  5th,  1870,  and  March  8th,  1870, 
dispose  of  the  bonds  known  as  special  tax  bonds,  and  the  act 
of  1871  has  reference  only  to  "  money,  choses  in  action,  pro- 
perty and  effects  belonging  to  the  compauy.     Ibid. 


INDICTMENT— L— II.  245 

7.  Therefore,  an  indictment  under  the  said  act  of  Febru- 
ary, 1871,  cannot  be  sustained  against  a  former  President  of 
the  Western  Railroad  Company,  for  refusing  to  transfer  to 
his  successor  in  office  certain  special  tax  bonds,  which  were 
issued  under  an  act  ratified  February  3d,  1869,  and  which 
came  into  the  hands  of  the  said  former  President  for  the  use 
and  benefit  of  the  company      Ibid. 

8.  A  civil  action  may  be  maintained  against  a  Justice 
who  acts  without  his  jurisdiction,  and  also  if  he  acts  irregu- 
larly and  oppressively ;  but  he  is  not  liable  for  a  mere  mis- 
take, or  error  of  judgment.  To  maintain  a  criminal  action 
against  a  Justice,  it  must  be  alleged  and  shown  that  he  acted 
without  his  jurisdiction,  or  corruptly,  and  with  a  criminal  in- 
tent, or  at  least  maliciously  and  without  probable  cause. 
State  v.  Furguson,  67  N.  C.  R  219. 

9  A  person  who  acts  in  good  faith,  and  makes  a  lawful 
application  to  a  Justice  of  the  Peace  for  relief  within  his  juris- 
diction, cannot  be  held  criminally  responsible  for  any  irregu- 
larities in  the  proceedings  before  the  said  Justice.     Ibid. 

10.  A  person  standing  in  loco  parentis  cannot  be  held 
criminally  responsible  for  correcting  the  son  of  the  woman 
with  whom,  at  the  time,  he  was  living  as  man  and  wife,  unless 
the  punishment  inflicted  exceed  the  bounds  of  moderation 
and  tended  to  cause  permanent  injury.  State  v.  Alford,  68 
8.  0.  R.  322.     • 

11.  The  disturbance  of  a  religious  congregation  by  sing- 
ing, when  the  singer  does  not  intend  so  to  disturb  it,  but  is 
conscientiously  taking  part  in  the  religious  services,  may 
be  a  proper  subject  for  the  discipline  of  his  church,  but  is  not 
indictable.     State  v.  IArilthaw,  69  N.  C.  R.  214. 

II.     TIME  IN  WHICH  AN  INDICTMENT  WILL  LIE. 

1.  When  an  assault  and  battery  was  committed  on  the 
12th  day  of  March,  1869,  and  a  bill  of  indictment  was  sent 
and  found  a  true  hill  on  the  17th  day  of  April,  1871 ;  held, 
that  the  statute  of  limitations  was  a  bar  to  the  prosecution, 
notwithstanding  a  warrant  was  issued  on  the  12th  day  of 
March,  1871,  tried  on  the  17th  of  April,  and  dismissed  at  the 
prosecutor's  cost.     State  v.  Mason,  66  N.  C.  R.  636. 

2.  The  law  is  well  settled,  that  a  person  born  on  the  first 
day  of  the  year  will  be  twenty-one  years  of  age  on  the  list 
day  of  the  year,  and  on  the  earliest  moment  of  the  day.  For 
such  purposes  the  law  does  not  regard  the  fractions  of  a  day. 
J  bid. 


240  IXDICTMENT— III. 

III.     QUASHING  INDICTMENTS. 

1.  It  is  no  ground  to  quash  an  indictment,  that  it  was 
found  by  a  grand  jury  drawn  from  a  venire  in  which  there 
were  no  colored  freeholders — the  jury  list,  as  constituted  by 
the  county  court  in  accordance  with  the  law  in  force  at  the 
time  of  its  constitution,  not  containing  the  names  of  such  col- 
ored freeholders.     State  v.  Taylor,  Phil.  L.  li.  508. 

2.  A  motion  to  quash  an  indictment  will  not  be  allowed 
after  a  verdict.     State  v.  Jarvis,  03  N.  C.  11.  550. 

3.  Indictments  found  (here,  at  Spring  Term,  1807,)  under 
the  late  Provisional  Government  of  the  State,  are  valid,  and 
are  to  be  heard  and  ended  under  the  present  Government. 
Ibid. 

4.  If  a  bill  of  indictment  be  endorsed  "  a  true  bill,"  by 
mistake,  when  the  grand  jury  had  ordered  their  Clerk  to 
endorse  it  "  not  a  true  bill,"  the  defendant  may  show  that 
fact  by  affidavit  or  otherwise,  either  upon  a  motion  to  quash 
or  upon  a  plea  in  abatement,  and  thereupon  the  indictment 
should  be  quashed.     State  v.  Barton,  03  N.  O.  R.  595. 

5.  It  is  error  to  quash  an  indictment  which  charges  in 
one  couut  the  stealing  oue  otter,  confined  in  the  trap  of  one 
J.  D.  P.,  and  in  an  other  count  "  a  certain  dead  otter  of  the 
value  of  one  dollar  of  the  goods  and  chattels  of  the  said  J. 
D.  P."     Stale  v.  House,  05  N.  0.  E.  325. 

0.  If  an  indictment  be  clearly  defective,  the  court  upon 
motion  will  quash,  whether  the  charge  be  for  a  felony  or  a  less 
offence.     State  v.  Sloan,  07  N.  C.  R.  357. 

7.  An  indictment  need  not  be  certain  "  to  a  certain  intent 
in  every  particular ;"  but  it  is  indisputable,  that  when  a  stat- 
ute enacts,  that  any  of  a  particular  class  of  persons  who  shall 
do  or  omit  to  do  an  act  under  certain  circumstances  shall  be 
guilty  of  a  crime,  the  indictment  under  that  statute  must 
describe  the  person  indicted  as  one  of  the  class,  and  aver  that 
he  did,  or  omitted  to  do,  the  act  charged,  under  circumstances 
which  make  it  a  crime.     1  bid. 

8.  Therefore,  where  an  indictment  framed  under  chap. 
38,  acts  of  180i)-'70,  failed  to  aver  that  the  accused  was  the 
President  of  a  Railroad  Company,  in  which  the  State  had  an 
interest,  and  also  failed  to  aver  that  he  had  received  the 
State  bonds  under  some  act  of  the  Legislature  or  ordinance 
of  the  Convention,  passed  since  May,  A.  D.,  1805;  it  was 
held,  that  such  au  indictment  was  fatally  defective,  and 
should  be  quashed.     Ibid. 


INDICTMENT— IV.  247 

IV.    FORM  AND  MATTERS  RELATING  THERETO. 

1.  An  indictment  for  receiving  stolen  goods  must  contain 
an  averment  of  the  person  from  whom  they  were  received. 
State  v  Beatty,  Phil.  L.  R.  52.    (Overruled  in  State  v.  Minton, 

infra  196.)  . 

2.  Where  the  joining  of  two  counts  is  permitted  by 
statute,  they  ought  not  upon  that  account  to  conclude  against 
the  statute.     1  bid. 

3.  Where  an  indictment  described  the  article  stolen  (here 
corn,)  as  being  the  "  property"  of  the  owner,  instead  of  being 
of  his  "  goods  and  chattels  " :  held,  to  be  sufficient.     Ibid. 

4.  An  indictment  for  larceny,  charging  the  thing  stolen 
as  the  property  of  A  B,  "  a  person  of  color ;"  and  concluding 
at  common  law,  is  good.     State  v.  Glisson,  Phil.  L.  E.  105. 

5.  An  indictment  for  receiving  stolen  goods  of  a  value 
less  than  twelve  pence,  must  conclude  against  the  form  of  the 
statute.     State  v.  Minton,  Phil.  L.  R.  190. 

<;.  An  indictment  for  the  murder  of  a  person  who  was  a 
slave  at  the  time  of  his  death,  cannot  be  supported  unless 
the  fact  of  his  being  a  slave  is  set  out.  State  v.  Penland, 
Phil.  L.  R.  222. 

7.  What  constitutes  a  sufficient  desuriptio  persona  in  bills 
of  indictment  charging  offences  by  or  upon  persons  in  the 
different  classes  of  society,  stared  by  Pearson,  C.  J.    Ibid. 

8.  A  stick  with  which  the  mortal  blow  was  given  may 
well  be  described  in  an  indictment  for  murder,  as  "a  certain 
stick  of  no  value."     State  v.  Smith,  Phil.  L.  K.  340. 

9.  Where  the  thing  stolen  is  at  the  time  of  stealing  in  a 
raw  or  unmanufactured  state,  it  may  be  described  in  an  in- 
dictment for  receiving  stolen  goods,  by  its  name  and  as  so 
much  thereof  in  quantity,  weight,  or  measure,  but  if  at  that 
time  it  had  been  worked  up  into  a  specific  article,  and  .so  re- 
mains, it  must  be  described  by  the  name  by  which  such  ar- 
ticle is  generally  known.     State  v.  Horan,  Phil.  L.  li.  571. 

10.  "A  cast  iron  top  of  an  iron  box,"  which  when  stolen 
had  been  separated  from  the  box,  may  be  well  described  in 
an  indictment  for  receiving  stolen  goods,  as  one  pound  of 
iron,  and  the  fact  that  it  weighed  more  or  less  than  one 
pound  will  make  no  difference.     Ibid. 

11.  When  the  punishment  for  a  common  law  offence  has 
been  mitigated  by  statue,  it  is  not  proper  that  the  indict- 
ment shall  conclude  "  against  the  form  of  the  statute." 
State  v.  Ratts,  65  N.  0.  II.  503. 

12.  That  an  indictment  concludes  against  the  form  of  the 


248  INDICTMENT— IV. 

Statue,  instead  of  Statute,  is  no  ground  for  an   arrest  of 
judgment.    State  v.  Smith,  63  N.  0.  R.  234. 

13.  An  indictment  for  an  act  which  is  criminal  when  com- 
mitted upon  Sunday,  must  state  that  the  act  in  question  was 
committed  upon  Sunday  ;  but  if  it  do  so,  no  exception  can 
be  taken  to  it  for  reference  to  the  same  day  bv  a  wrong  day 
of  the  month.     State  v.  Drake,  64  N.  C.  R.  581). 

14.  It  is  immaterial  that  the  indictment  use  the  expres- 
sion, "  the  Sabbath  "  instead  of  "  Sunday."    Ibid. 

15.  A  misrecital  of  the  proper  county  in  the  caption  of  an 
indictment  furnishes  no  ground  for  arrest  of  judgment.  State 
v.  Sprinkle,  65  N.  0.  R.  463. 

16  Semble :  Such  an  indictment  would  have  been  suffi- 
cient before  the  act.  Rev.  Code,  chap  35,  sec.  14.  Bat. 
Rev ,  ch.  33,  sec.  60.     Ibid. 

17  An  indictment  for  murder  which  charges  that  the 
prisoners  on  the  deceased  "  did  make  an  assault  and  in  some 
way  and  manner,  and  by  some  means,  instruments  and 
weapons  to  the  jurors  unknown,  did  then  and  there  feloni- 
ously, wilfully,  and  of  their  malice  aforethought  deprive  him, 
the  said  A  of  his  life,  so  that  the  said  A  did  then  and  there 
instantly  die,"  &c,  is  sufficient,  although  the  evidence  pre- 
sents different  ways  and  means  by  which  the  deceased  might 
have  been  killed.     State  v.  Parker,  65  N.  C.  R.  453. 

18.  A  count  in  an  indictment  must  be  complete  in  itself, 
and  contain  all  the  material  allegations  which  constitute  the 
offence  charged.  Therefore  a  count  charging  defendant  with 
receiving  of  stolen  goods,  is  defective,  which  does  not  con- 
tain the  name  of  the  defendant  in  the  proper  place,  and  dis- 
tinctly charge  him  with  receiving  the  stolen  goods.  State  v. 
Phelps,  65  N.  0.  R  450. 

19.  This  defect  is  not  cured  by  the  statute,  Rev.  Code,, 
chap.  35,  sec.  14,  (Bat  Rev.,  ch.  33,  sec.  60,)  aud  judgment 
will  be  arrested.     Ibid. 

20.  Where  time  is  not  the  essence  of  the  offence,  and  there 
is  but  one  statute  applicable  to  the  matter,  although  that 
statute  be  recent,  or  recent  aud  not  to  take  effect  until  after 
a  specified  time,  the  indictment  need  not  contain  an  aver- 
ment that  the  offeuce  was  committed  after  the  statute  went 
into  operation.     State  v.  Wise,  (i6  N.  C.  R.  620 

21.  But  there  are  two  statutes  in  reference  to  the  same- 
offence,  and  the  one  of  subsequent  date  changes  the  nature 
of  the  offence,  or  the  punishment  of  the  same,  the  indict- 
ment must,  by  proper  averment,  refer  to  the  statute  under 
which  it  was  found,  so  that  the  court  may  see  the  exact 


INDICTMENT— IV.  249 

character  of  the  offence,  and  the  nature  and  measure  of  the 
punishment  to  be  imposed.     Ibid. 

22.  The  20th  sec.  35th  ch.  Rev.  Code,  is  intended  to  cure 
only  formal  defects  in  the  indictment,  after  judgment,  and 
not  omission  of  averments,  necessary  to  enable  the  court  to 
give  judgment  intelligently,  and,  as  in  this  case,  to  see  wheth- 
er to  proceed  under  the  one  statute  or  the  other.     Ibid. 

23.  Therefore,  where,  by  the  act  of  18G9,  the  punishment 
for  arson  was  confinement  in  the  penitentiary,  and  by  the  act 
of  1871,  death,  and  the  offence  was  committed  after  the  last 
mentioned  act,  but  the  time  designated  in  the  indictment 
was  before  it,  and  there  was  no  averment  in  the  indictment 
specifying  which  of  the  two  acts  it  was  found  under,  and 
there  was  a  verdict  of  guilty,  and  judgment  of  death;  held, 
that  the  judgment  must  be  arrested.     Ibid. 

24.  When  an  order  was  forged  and  drawn,  in  the  name 
of  an  overseer  and  agent  upon  the  principal,  and  the  purpose 
was  to  defraud  the  principal,  the  indictment  for  such  forgery 
must  aver  that  the  person  whose  name  was  forged,  was  the 
agent,  and  that  he  had  authority  to  draw  upon  his  principal; 
otherwise,  the  court  cannot  see  that  the  false  paper  had  a 
tendency  to  defraud  the  principal,  or  how  it  could  have  been 
issued  for  such  a  purpose.     State  v.  Thorn,  00  N.  C.  R.  044. 

25.  In  an  indictment  under  the  act  of  1868-'69,  ch.  253, 
(Battle's  Rev.  chap.  32,  sec.  95,)  concerning  the  killing,  &c 
of  stock  "in  an  enclosure  not  surrounded  by  a  lawful  fence," 
which  simply  charges  the  injury,  &c  ,  to  have  been  committed 
on  stuck  in  "the  field"  of  one  A  B,  is  not  certain  to  that 
extent  required  in  such  pleading,  and  after  a  conviction  on 
such  indictment,  a  motion  in  arrest  of  judgment  will  be  sus- 
tained.    State  v.  Stanton,  00  N.  C.  It.  040. 

2(>.  Such  a  defect  is  not  an  informality  or  refinement 
within  the  purview  of  the  14th  sec.  35th  chapter  of  the  Rev. 
Code,  but  is  a  failure  to  express  the  charge  against  the  defen- 
dant in  a  plain,  intelligible  and  explicit  manner.     Ibid. 

27.  Where  a  bill  of  indictment  for  murder  did  not  allege 
the  time  ot  the  death,  nor  that  it  occurred  within  a  year  and 
a  day  from  the  time  when  the  wound  was  indicted,  but  used 
these  words,  "of  which  said  mortal  wound  the  said  ,).  H.  did 
languish,  and  then  and  there  did  die  :"  held,  that  the  charge 
in  the  indictment  was  sufficient ;  especially  under  the  act  of 
the  General  Assembly,  Rev.  Code,  chap.  35,  sees.  15  and  20, 
Bat.  Rev.  chap.  33,  sees.  00  and  0<S.  State  v.  Haney,  07 
N.  C  R.  407. 

28.  It  is  still  necessary,  in  an  indictment  for  felony,  in  this 


250  INDICTMENT— IV. 

State,  to  charge  the  act  constituting  the  crime  to  have  been 
done  "feloniously,"  and  that  word  cannot  be  supplied  by  any 
equivalent.     State  v.  Purdie,  07  N.  C.  R.  25. 

29.  An  indictment  for  rape,  charging  that  the  assault  was 
violent  and  felonious,  and  that  the  ravishing  was  felonious, 
and  against  the  will  of  the  prosecutrix,  is  sufficient.  State 
v.  Thos.  Johnson,  07  N.  0.  R.  oo. 

30.  The  name  of  the  person  ravished  was  charged  in  the 
indictment  as  Susan,  while  her  real  name  was  Susannah, 
though  she  was  generally  called  Susan  :  held,  to  be  no  ground 
of  objection.     Ibid. 

31.  An  indictment  charging  that  the  defendant  "  unlaw- 
fully, wilfully  and  maliciously  did  enter  upon  the  lands  of  R. 
B.,  there  situate,  and  did  then  and  there  set  tire  to  the  woods 
on  said  land,  is  sufficient  under  20th  section,  chap.  35,  lie- 
vised  Code.  (Bat.  lie  v.,  ch.  33,  sec.  00.)  State  v.  Purdie, 
07  N.  C.  R.  320. 

32.  An  averment  in  an  indictment  for  highway  robbery, 
''That  W.  W,  late  of  the  county  of  Yancey,  at  and  in  the 
county  aforesaid,  in  the  common  highway  of  the  State,  did 
then  and  there  feloniously  assault  one  F.  L.,  and  did  then 
and  there  put  him  in  fear  of  his  life,  and  ten  pounds  of  cof- 
fee, &c,  did  then  and  there  feloniously  and  violently  steal, 
take  and  carry  away,  &c,"  is  made  with  sufficient  certainty. 
There  is  sufficient  certainty  to  support  a  plea  of  autrefois 
acquit,  or  convict,  and  sufficient  certainty  to  apprise  a  pris- 
oner of  the  place  where  the  offence  was  committed.  State 
v.  Wilson,  07  N.  O.  R.  450. 

33.  The  word  "feloniously"  is  absolutely  necessary  in  every 
indictment  charging  a  felony,  and  it  cannot  be  dispensed 
with  or  its  use  supplied  by  any  circumlocution,  btate  v. 
Ruclcer,m  N.  0.  R.  211. 

34.  To  make  profane  swearing  a  nuisance,  the  profanity 
charged  must  be  uttered  in  the  hearing  of  divers  persons  ; 
and  it  must  be  charged  in  the  bill  of  indictment,  and  proved 
to  have  been  so  uttered.  The  general  allegation  ad  commune 
nocumentum  is  insufficient.   State  v.  Pepper,  08  N.  O.  R.  250. 

35.  Hence,  where  the  indictment  alleged  that  the  defen- 
dant "  in  the  public  streets  of  the  town  of  L.,  with  force  and 
arms,  and  to  the  great  displeasure  of  Almighty  God,  and 
the  common  nuisance  of  all  good  citizens  of  the  State  then 
and  there  assembled,  did,  for  a  long  time,  to-wit:  for  the 
space  of  twelve  seconds,  profanely  curse  and  swear,  and  take 
the  name  of  Almighty  God  in  vain,  to  the  common  nuisance, 
&c":  held,  that  no  criminal  offence  was  therein  charged. 
Ibid. 


INDICTMENT— IV.  251 

3G.  A  makes  a  crop  of  cotton  on  the  plantation  of  B,  uu- 
der  verbal  agreement  that  B  is  to  have  half  of  it,  and  while 
the  cotton  is  in  the  house  waiting  to  be  ginned,  and  before 
any  division,  it  is  stolen  :  Held,  that  in  the  indictment  the 
cotton  was  properly  charged  to  be  the  property  of  A  and  an- 
other.    State  v.  Patterson,  G8  N.  0.  R ,  292. 

37.  In  an  indictment  for  murder,  the  assault  is  charged 
to  have  been  made  on  one  "  N.  8.  Jarrett,"  and  in  subse- 
quent parts  of  the  indictment  he  is  described  as  "  Nimrod  S. 
Jarrett:"  Htld,  to  be  no  variance.  State  v.  Henderson,  68 
N.  0-  R.,  348. 

38.  The  term  ''Criminal  action"  and  " Indictment"  are 
used  in  the  Constitution  and  in  the  Code  of  Civil  Procedure 
as  synonymous:  Therefore,  it  would  be  equally  regular  to 
entitle  a  case  upon  the  records  of  the  court  either  as  "  The 
People  v.  AB — Criminal  action,"  or  "State  v.  A  B. — In- 
dictment."    State  v.  Allen  (58  N.  C.  R.,  378. 

39.  It  is  no  ground  for  the  arrest  of  judgment  that  the 
indictment  charged  the  offence  to  have  been  committed  in 
the  said  "  county,"  as  it  had  caption,  "  Cumberland  county," 
and  the  defendant  was  stated  to  be  of  that  county.  It  is  an 
informality  which  is  saved  by  the  Rev.  Code,  chap  35,  sec. 
14.  (Bat.  Rev,  c.  33,  s  GO.)  State  v  Evans,  G(J  N.  C.  R.,  40. 

40.  The  mis-description  (if  any)  in  describing  the  court  in 
which  the  false  oath  is  alleged  to  have  been  taken  as  "before 
Joseph  Z  Piatt,  a  Justice  of  the  Peace  in,  and  for  said 
county,""  instead  of  as  "a  Court  of  a  Justice  of  the  Peace 
for  township  A,  of  Chowan  county,"  is  not  a  substantial  va- 
riance from  the  true  description,  and  is  cured  by  Act  of  1811, 
Rev.  Code,  sec  14,  chap.  35.  It  would  also  be  cured  by  sec- 
tions 15  and  10,  of  chapter  35  of  Rev.  Code.  State  v.  Davis, 
69  N.  C.  R.,  405. 

41.  An  indictment  under  the  Act  of  1868-'69,  chap.  253, 
(Battle's  Revisal,  chap.  32,  sec  05,)  for  the  killing  live  stock 
under  certain  circumstances,  which  charges  that  the  defen- 
dant on  &o,  at&c,  "A  certain  mule  of  the  value  of  one 
hundred  dollars,  the  property  of  one  J.  S.  E.,  the  said  mule 
being  then  and  there  within  an  inclosure  not  surrounded  ly 
a  lawful  fence,  unlawfully  and  willfully  did  abuse,  injure  and 
kill  contrary,"  &c,  is  sufficient,  though  it  would  have  been 
more  satisfactory  if  it  had  staled  whose  the  inclosure  was, 
whether  the  defendant's  or  some  other  person.  State  v.  Allen, 
00  N.  C  R.,  23. 

-12  An  indictment,  in  which  it  is  charged  that  the  defen- 
dant "did  profanely  curse  and  swear,  and  take  the  name  of 


252  INDICTMENT— IV.— V— VI. 

Almighty  God  in  vain,"  &c,  "  to  the  common  nuisance,'' 
«&c,  charges  no  offence,  and  cannot  be  sustained.  Slate  v. 
Powell,  00  N.  0.  R.,  07. 

43.  In  an  indictment  under  the  95th  section  of  chapter 
32  of  Bat.  Eev.,  the  charge,  that  the  defendants  "unlawfully 
and  willfully  did  kill,  injure  and  abuse  one  cow,  one  heifer, 
the  property,"  &c,  "  which  said  cow  and  heifer  were  then 
and  there  in  an  inclosure,  not  then  and  there  surrounded  by 
a  sufficient  fence,"  is  sufficient.  State  v.  Painter,  70  N.  0. 
R.,  70. 

44.  An  indictment  under  the  act  of  1800,  chap.  00,  in 
which  it  is  charged,  that  the  defendant  did  unlawfully  enter 
upon  the  premises  of  the  prosecutor,  he,  the  said  defendant,, 
having  been  forbidden  to  enter  on  said  premises;  and  not  hav- 
ing a  license  to  enter,  &c,  is  sufficient  State  v.  Whitehurst, 
70  N.  O.  U.  85 

45.  In  an  indictment  for  larceny,  the  ownership  of  the 
properly  stolen  is  charged,  "  100  lbs  of  cottou,  the  property 
ofO,  100  lbs  of  cotton,  the  property  of  G :"  held,  that  the 
objection  to  the  indictment  on  account  of  duplicity  and  obscu- 
rity, would  have  been  fatal  on  a  motion  to  quash,  but  that 
the  defect  is  cured  by  a  verdict,  as  provided  in  chap.  35,  sees. 
15  aud  20,  iiev.  Code.     State  v.  Simons,  70  N.  0 .  li.  330. 

See  (Assault  and*  Buttery,  0,  19.)  (Forcible  Trespass,  7.) 
(Forcible  Entry  and  Detainer,  7.)  (Forgery,  4,  5,  7.)  (Lar- 
ceny, 4,  11,  12,  17,  18,  30.)     Perjury,  4,^5,  (>.)     (Rape,  4,  5.) 

V.     PLEA.  OF  FORMER  ACQUITTAL  OR  CONVICTION. 

1.  Under  the  plea  of  former  conviction,  if  the  acts  alleged 
in  the  second  indictment  are  embraced  in  the  first,  and  were 
relied  upon  to  sustain  that  indictment  and  increase  the  pun- 
ishment of  the  defendant,  he  is  entitled  to  an  acquittal. 
State  v.  Lindsey,  Phil.  L.  R.  408. 

2.  Therefore,  where  one  was  indicted  for  assault  and  bat- 
tery, and  it  was  proved  that,  in  a  former  indictment  against 
him  and  others  for  riot,  the  assault  charged  had  been  given 
in  evidence  with  other  acts  of  like  character,  his  conviction 
of  the  riot  is  a  bar  to  the  second  prosecution.     Ibid. 

VI.     REMOVAL  OF,  INTO  THE  U.  S.  COURTS. 

1.  When  it  appears  from  the  affidavit  of  a  person  of  color, 
charged  with  a  capital  offence,  that  he  cannot  have  full  and 
equal  benefit  of  all  laws  and  proceedings  for  the  security  ot 


INDICTMENT— VI.— VTL  253 

person  and  property  as  is  enjoyed  by  white  citizens,  and  that 
his  rights  cannot  be  enforced  in  the  State  Courts :  Held, 
That  "under  the  act  of  Congress  of  9th  April,  1866,  the  State 
Courts  will  proceed  no  further  in  the  prosecution  until  certi- 
fied of  the  action  of  the  Circuit  Court  of  the  United  States 
under  the  act  ot  Congress,  March  3,  1863.  State  x.Dunlap, 
65  N.  C.  E.  491. 

2.  It  is  erroneous  in  such  a  case  to  order  the  removal  of 
the  indictments  to  the  Circuit  Court  of  the  United  States ; 
but  to  suspend  proceedings  in  the  cause  till  certified  to  the 
court  under  the  aforesaid  acts  of  Congress.     Ibid. 

VII.     OF  THE  TRIAL,  VERDICT  AND  JUDGMENT. 

1.  If  pending  an  appeal  in  a  criminal  case,  the  statute 
authorizing  the  indictment  is  repealed,  judgment  will  be 
arrested.    ^State  v.  Nutt,  Phil  L.  R.  20. 

2.  It  is  error  in  a  Judge  to  give  any  charge  to  the  jury  in 
the  absence  of  the  prisoner.  State  v.  Blackwelder,  Phil.  L. 
R.  38. 

3.  If  there  be  a  general  verdict  of  guilty,  upon  an  indict- 
ment having  two  counts,  judgment  cannot  be  arrested  because 
one  of  those  counts  is  bad.     State  v.  Beatty,  Phil.  L.  R-  52. 

4.  If  one  of  two  repugnant  counts  is  bad,  a  general  ver- 
dict of  guilty  may  well  be  supported  by  the  other.     Ibid. 

5.  The  proper  time  for  an  objection  to  the  grand  jury 
that  found  an  indictment,  is  before  the  trial.  State  v.  Sears, 
Phil.  L.  R.  140. 

0.  Whether  the  doctrine  of  reasonable  doubt  applies  to 
misdemeanors  or  not,  a  charge  that  to  convict,  the  jury  must 
be  ''fully  satisfied,"  of  the  defendant's  guilt,  is  all  that  he  has 
the  right  to  ask.     Ibid. 

7.  Reasonable  doubt  is  not  a  necessary  formula,  and  it  can 
only  be  required  in  any  case  that  the  Judge  impress  upon 
the  jury  the  principle  that  the  innocent  must  uot  be  pun- 
ished.    Ibid. 

8.  Upon  a  trial  for  malicious  mischief  it  is  sufficient  to 
charge  that  they  must  be  "  satisfied"  as  to  the  ownership  of 
the  property  injured.     Ibid. 

9.  Where  a  defendant  was  indicted  in  several  counts  and 
found  guilty  upon  two,  held,  to  be  no  ground  for  arrest  of 
judgment,  that  one  of  the  two  were  defective,  the  judgment 
being  such  as  the  court  had  a  right  to  render  on  the  other. 
State  v.  Tisdale,  Phil.  L.  R.  220. 

10.  Where  a  Judge  charged  the  jury  that  they  must  ren- 


254  INDICTMENT— VII. 

der  afair  and  "honest  verdict ;  if  they  had  a  reasonable  doubt 
as  to  the  guilt  of  the  prisoners  it  was  their  duty  under  the  obli- 
gations which  they  had  taken,  to  render  a  verdict  accordingly  ; 
but  if  they  were  satisfied  beyond  reasonable  doubt  upon  the 
law  and  the  evidence  that  the  prisoners  were  guilty,  and  from 
any  false  sympathy  render  a  verdict  of  not  guilty,  that  the 
law  said  they  were  perjured  men  :"  held,  that  it  was  not  error. 
State  v.  Fulkerson,  Phil.  L.  R.  233. 

11.  It  is  not  error  for  the  Judge,  after  he  has  once  charged 
the  jury  and  they  have  retired  and  failed  to  agree,  in  pro- 
ceeding to  give  further  instructions,  to  refuse  to  permit  more 
to  be  said  in  behalf  of  the  prisoners  or  the  State  ;  though  it 
may  be  restrictive  of  our  indulgent  practice  in  capital  trials. 
IMd. 

12.  Although  no  bill  of  exceptions  be  filed,  and  it  do  not 
appear  that  there  was  any  motion  in  arrest  of  judgment,  the 
Supreme  Court  will  examine  the  record  to  see  whether  there 
is  any  en  or.     State  v.  Wilson,  Phil.  L.  R.  237. 

13.  Although  it  be  error  to  charge  that  the  doctrine  of 
"  reasonable  doubt"  does  not  apply  in  trials  for  misdemean- 
ors, yet  where  the  instructions  taken  altogether  gave  the 
prisoner  the  benefit  of  that  doctrine,  and  informed  the  jury 
that  they  must  be  "  fully  satisfied  before-  convicting,"  held^ 
that  there  was  no  error.     State  v.  Knox,  Phil.  L.  R.  312. 

14.  After  verdict  the  defendant  cannot  object  that  evi- 
dence was  improperly  admitted,  it  he  did  not  except  when  it 
was  introduced.     State  v.  Smith,  Phil.  L.  R.  302. 

15.  There  is  no  ground  for  an  arrest  of  judgment  unless 
a  fatal  detect  appears  in  the  record  j) roper,  as  distinguished 
from  the  .statement  of  the  case  by  the  Judge.  State  v.  Potter, 
Phil.  L  R.  338 

16.  The  Statute  of  Ann,  allowing  a  defendant  to  enter 
two  or  more  pleas,  does  not  apply  to  indictments      Ibid. 

17.  Evidence  making  a  mere  ground  for  conjecture  that  a 
homicide  was  accidental,  is  to  be  regarded  as  no  evidence. 
State  v  Haywood,  Phil.  L.  R.  31 G. 

18.  Upon  trials  for  murder,  a  killing  by  the  prisoner  hav- 
ing been  proved,  the  burden  of  proof  shifts  to  the  prisoner. 
IMd. 

19.  When  it  was  shown  that  the  prisoner  killed  the  de- 
ceased by  shooting,  and  made  his  escape,  and  afterwards  said 
he  had  killed  deceased  but  did  not  know  that  the  gun  was 
loaded,  the  fact  that  the  gun  was  out  of  order  and  would  not 
stand  at  half-cock,  did  not  make  it  error  for  the  Judge  to  re- 
fuse to  charge  that  "  if  the  prisoner  was  handling  the  gun 


INDICTMENT— VII.  255 

in  a  careless  and  negligent  manner  and  it  accidently  went  off, 
the  killing  was  mitigated  to  manslaughter,*  there  being  no 
evidence  of  negligent  handling  or  accident.     Ibid. 

20.  A  charge  upon  the  subject  of  insanity  in  criminal 
cases  commended.     I  bid. 

21.  It  is  no  ground  tor  an  arrest  of  judgment,  that  the 
name  of  the  State  is  omitted  in  the  body  of  the  indictment ; 
or,  that  the  memorandum  of  the  pleas  of  tiro  defendants  is 
prefaced  by  the  word  "saith."  Slate  v.  JDula,  Phil.  L.  R. 
437. 

22.  A  jury  charged  with  a  ease  of  alleged  murder,  re- 
tired to  consider  of  their  verdict  upon  Saturday  of  the  first 
week  of  the  term,  at  8  o'clock,  P.  M.,  and  upon  Monday  of 
the  2d  week,  at  5£  o'clock,  P.  M.,  returned  iuto  Court,  being 
unable  to  agree;  thereupon,  the  Judge  ordered  a  juror  to  be 
withdrawn :  hdd,  that  such  order  was  erroneous,  and  in  con- 
sequence thereof,  the  prisoner  could  not  be  tried  again,  and 
had  a  right  to  be  discharged  from  custody.  State  v.  Alman, 
6 IN.  C.  R.  364. 

23.  Iu  a  case  where  an  indictment  for  murder  was  based 
upon  circumstantial  evidence  tending  to  show  that  the  homi- 
cide had  been  accompanied  by  robbery,  and  the  prisoner  in 
whose  possession  soon  afterwards  the  things  taken  were  found, 
denied  having  inflicted  the  fatal  blow,  held  that  the  presiding 
Judge  was  correct  in  charging  that  the  prisoner  was  guilty 
of  murder,  or  of  nothing.     State  v.  Parker,  Phil.  L.  R.  473. 

24.  Where  a  Judge  otherwise  administers  the  law  cor- 
rectly, held,  not  to  be  error  for  him  to  decline  using  the  very 
words  in  which  an  important  legal  proposition  has  been  ac- 
curately laid  down  in  another  case ;  and  that  sometimes  cir- 
cumstances attending  a  trial  may  render  it  improper  for  a 
judge  to  define  a  legal  principle  iu  the  very  words  that  were 
strictly  correct  in  another  case.     Ibid. 

25.  There  is  no  "formula"  to  which  judges  may  resort 
for  guaging  the  degree  to  which  a  jury  must  be  convinced  in 
order  to  justify  a" verdict  of  guilty,  and  attempts  to  create 
such  have  resulted  in  no  good.     Ibid. 

2(1.  Applications  fora  new  trial  because  a  verdict  is  against 
the  weight  of  the  evidence,  arc  addressed  to  the  discretion  of 
the  judge  below,  and  therefore  cannot  be  reviewed  by  the 
Supreme  Court.     State  v.  Kear~<y,  Phil.  L.  R.  481. 

27.  It  is  no  ground  for  a  motion  to  quash  an  indictment, 
or  to  arrest  judgment,  that  the  defendant  was  convicted  up- 
on an  indictment  round  by  a  grand  jury  in  1803,  while  the 
lightful  State  government  was  suspended.     Ibid. 


256  INDICTMENT— VII. 

28.  One  who  was  ordered  into  custody  to  secure  the  fine 
and  costs  in  a  criminal  case  having  escaped,  held,  that  it  was 
competent  for  the  Solicitor  to  have  him  again  arrested  that 
he  might  he  compelled  to  undergo  the  sentence ;  and  that 
the  fact  that  the  escape  in  question  was  voluntary  did  uot 
alter  the  rule.     State  v.  McClure,  Phil  L.  E.  491.  * 

29.  After  the  testimony  for  the  State  is  closed  and  before 
witnesses  tor  the  prisoner  are  introduced,  his  counsel  has  no 
right,  in  stating  the  grounds  of  defence,  to  comment  at  length 
upon  the  evidence  tor  the  State.     Ibid. 

30.  It  appearing  in  this  court,  upon  appeal  by  a  prisoner, 
that  a  verdict  of  guilty  had  been  entered  below,  the  court  can 
not  arrest  the  judgment  because  the  judge  had  not  the  power 
to  impose  the  punishment  ordered  by  him,  but,  as  the  appeal 
vacated  that  judgment,  must  send  the  case  down  for  such 
judgment  as  the  law  allows.     State  v.  Cook,  Phil.  L.  E.  535. 

31.  A  general  verdict  of  guilty,  upon  an  indictment  con- 
taining several  counts,  will  be  supported,  although  these  are 
inconsistent  as  regards  their  statement  of  the  manner  of  kill- 
ing.    State  v.  Baker,  63  N.  C.  E.  276. 

32.  A  charge  that — "if  the  acts  deposed  by  the  0.  P. 
were  the  cause  of  the  death,  it  was  murder,"  held,  to  be  no 
trespass  upon  the  province  of  the  jury.     Ibid. 

33.  During  a  capital  trial,  one  ot  the  jury  (then  out  of 
court  in  charge  of  an  officer  for  the  purpose  of  eating  dinner,) 
was  allowed  to  pass  by  or  near  a  number  of  persons,  and  to 
eat  his  dinner  at  a  short  distance  from  the  other  jurors, 
although  he  conversed  with  no  one ;  held,  to  give  no  just 
cause  for  complaint  to  the  prisoners.     Ibid. 

34.  Where,  upon  trials  for  capital  offences,  questions  arise 
as  to  the  propriety  of  discharging  the  jury  without  a  verdict: 
whether  a  necessity  exists  for  such  discharge  is  a  matter  to 
be  decided  by  the  Judge  presiding  at  such  trial ;  and  it  is  his 
duty  to  ascertain  the  facts  which  constitute  such  necessity. 
State  v.  Prince,  63  N.  0.  E.  529. 

35.  The  exercise  of  such  discretion  in  any  particular  case 
of  discharge  may  be  appealed  from,  and  in  such  case  the 
finding  of  the  facts  in  the  court  below  is  inclusive,  leaving 
law  as  deduced  from  such  facts  to  be  reviewed.     Ibid. 

36.  In  a  case  where  three  persons  were  put  upon  trial  for 
murder,  the  prisoners  proposed  that  they  should  be  exam- 
ined as  witnesses  for  each  other.  The  State  objected,  but 
the  court  allowed  the  motion  ;  thereupon  the  Solicitor  ap- 
pealed, and  the  Court,  to  allow  him  such  appeal,  iu  spite  of 
the  objection  of  the  prisoners,  withdrew  a  juror,  and  made  a 


INDICTMENT— VII.  257 

mistrial :  held,  to  have  been  au  erroneous  exercise  of  discre- 
tion, and  that  thereupon  the  prisoners  were  entitled  to  a 
discharge.    Ibid. 

37.  The  tacts  occurring  at  the  trial,  alleged  as  ground  for 
a  new  trial,  must  appear  affirmatively  upon  the  record  trans- 
mitted from  the  court  below.  State  v.  Buttock,  03  N.  0.  E. 
570. 

38.  It  is  a  matter  of  discretion  with  the  presiding  judge 
to  discharge  a  jury  upon  a  trial  for  crime,  before  they  have 
rendered  a  verdict ;  and  semble,  that  in  all  cases  an  appeal 
may  be  had  from  the  decision  ot  the  Judge  upon  the  law  in- 
volved in  such  discharge.     Ibid. 

30.  Qucere,  whether  the  common  law  rule  of  carrying  a 
jury  around  the  circuit  in  case  ot  their  disagreement,  do  uot 
still  exist  in  this  State.     Ibid. 

40.  On  a  trial  for  felony  no  order  that  may  prejudice  the 
prisoner  can  be  made  in  his  absence  from  the  bar.  State 
v.  Alman,  04  N.  C.  E.  304. 

41.  A  prisoner  has  no  right  to  except  on  account  of  the 
Court's  having  taken  a  recess  during  the  trial  from  one  even- 
ing to  the  next  morning  ;  nor,  because  the  Court  declined  to 
provide  that  during  such  recess  the  witnesses  for  the  State 
should  be  kept  separate.     State  v.  Manuel,  04  N".  C.  E.  001. 

4'2.  In  an  indictmeut  for  crime,  the  defendant,  ordinarily, 
is  entitled  to  have  the  whole  case  left  to  the  jury  upou  the 
evidence  on  both  sides,  and  if,  upon  a  consideration  of  all  such 
evidence,  every  reasonable  doubt  be  not  removed,  the  jury 
should  acquit.     State  v.  Josei/,  04  N.  C.  B.  56. 

43.  Therefore,  iu  a  case  of  larceny,  an  instruction  to  tire 
jury  "that  the  burden  of  proof  to  show  the  guilt  of  the 
prisoner  is  upon  the  State ;  but  that  when  the  State  has 
made  out  a  prima  facie  case,  and  the  prisoner  attempts  to 
set  up  an  alibi,  the  burden  ot  prool  is  shitted,  and  if  the 
defence  fail  to  establish  the  alibi  to  the  satisfaction  of  the 
jury,  they  must  find  the  prisoner  guilty,"  is  erroneous.     Ibid. 

44.  The  rule  is  otherwise  where  the  question  is  as  to 
malice  in  cases  of  homicide  ;  and  also,  generally,  where  the 
defendant  relies  upou  some  distinct  ground  of  defence  not 
necessarily  connected  with  the  transaction  on  which  the  in- 
dictment is  founded,  ex.  (jr.  insanity  ;  and  it  may  be  so  as  to 
matters  of  defence  peculiarly  within  the  knowledge  of  the 
defendant.    Ibid. 

4.~>.     A  special  verdict  in  an  indictment  for  malicious  mis- 
chief whi'h  omits  to  find  that  the  act  was  done  with  malice 
17 


258  INDICTMENT— VII. 

towards  the  owner  of  the  property  injured,  is  equivalent  to 
an  acquittal.     State  v.  Newby,*64:  N.  C.  E.  23. 

46.  Upon  the  rendition  of  a  verdict  of  not  guilty  against 
a  defendant  in  an  indictment,  he  is  entitled  to  his  discharge, 
nothing  more  appearing  against  him.  State  v.  Freeman,  66 
N.  0.  E  647. 

47.  A  Judge  has  no  right  to  set  aside  a  verdict  of  not  guilty, 
nor  to  grant  a  new  trial,  on  the  motion  of  the  State.     Ibid. 

48.  In  a  trial  for  a  capital  felony,  the  Judge,  for  sufficient 
cause,  may  discharge  a  jury  and  hold  the  prisoner  for  anoth- 
er trial ;  in  which  case,  it  is  his  duty  to  find  the  facts  and  set 
them  out  on  the  record,  that  his  conclusions  upon  matters  of 
law,  arising  unon  the  facts,  may  be  reviewed  by  this  Court. 
State  v.  Jefferson,  66  N.  C.  E  309. 

49.  It  is  the  duty  of  a  Judge  to  be  personally  present  in 
Court,  and  to  find,  judicially,  the  facts  upon  which  his  con 
elusions  are  based.  Judicial  power  cannot  be  delegated. 
Where,  therefore,  a  Judge  is  absent  from  the  Court,  and  tele- 
graphs to  the  Clerk  to  discharge  a  jury,  and  the  Clerk  so 
does :  held,  to  be  error  and  the  prisoner  in  such  case  is  en- 
titled to  his  discharge.     Ibid. 

50.  Where  the  record  shows  that,  after  the  jury  returned 
a  verdict  of  guilty  in  a  capital  trial,  the  prisoner  moved  for  a 
new  trial,  &c,  it  was  not  absolutely  essential  that  the  Judge, 
before  pronouncing  sentence,  should  ask  the  prisoner,  in  the 
usual  formula,  whether  he  had  anything  to  say  why  sentence 
of  death  should  not  be  pronounced  against  him.  State  v. 
Thomas  Johnston,  67  N.  0.  E  55. 

51.  Where  judgment  cannot  be  pronounced  against  a  pris- 
oner, ou  account  of  the  ambiguity  of  an  indictment,  in  omit- 
ting to  aver  under  what  statute  it  was  framed,  there  being 
two  in  reference  to  the  same  subject,  such  omission  cannot 
be  supplied  by  a  plea  to  the  further  prosecution  of  the  case, 
tiled  by  the  prisoner's  counsel,  admitting  the  time  when  the 
offence  was  committed.     State  v.  Wise,  67  N.  C.  E.  281. 

52.  No  such  effect  can  be  allowed  to  the  action  of  the 
counsel.  A  record  cannot  be  aided  by  matter  in  pais.  Suf- 
ficient matter  must  appear  on  the  record  to  enable  the  Court 
to  proceed  to  judgment.     Ibid. 

53.  Wheu  a  verdict,  in  a  case  subjecting  a  party  to  pun- 
ishment in  the  penitentiary,  is  rendered  out  of  Court,  to  a 
Judge  at  his  chambers,  in  the  absence  of  the  prisoner  and 
his  counsel,  and  is  entered  on  the  record  on  the  next  day,  in 
the  absence  of  the  jury  and  the  prisoner :  held,  that  such 
verdict  cannot  be  sustained.     State  v.  Bray,  67  N.  C.  E.  283. 


INDICTMENT— VII.  259 

54.  In  cases  of  necessity,  a  mistrial  may  be  ordered  in 
capital  cases.     State  v.  Wiseman,  08  N.  0.  R.  203. 

5~j.  The  necessity  justifying  such  mistrial  may  be  regard- 
ed as  a  technical  term,  including  distinct  classes  of  necessity; 
for  instance,  the  one  physical  and  absolute,  as  where  a  juror 
from  sudden  illness  is  disqualified  to  sit,  or  the  prisoner 
becomes  insane,  and  so  on;  another  may  be  termed  a  case  of 
legal  necessity  or  the  necessity  of  doing  justice,  as  in  case  of 
tampering  with  jurors,  and  snch  like — snch  cases  of  necessity 
beinii  the  subject  of  review  in  this  court  after  a  final  decision 
in  the  court  below.     Ibid. 

50.  Whenever  the  court  below  finds  that  the  jury  has 
been  tampered  with,  a  mistrial  should  be  ordered,  it  being 
oue  of  the  highest  duties  of  the  court  to  guard  the  adminis- 
tration of  justice  against  such  fraudulent  practices.     Ibid. 

57.  The  counsel  for  the  State  has  a  right  to  exhibit  and 
comment  upon  a  stick  which  had  been  before  identified  as 
one  had  by  one  of  the  defendants,  and  with  which  it  was 
alleged  the  prosecutor  had  been  struck.  State  v.  Mordecai, 
08  N.  O.  R  207. 

58.  Where,  on  a  trial  of  a  white  man  for  the  murder  of  a 
negro,  the  Solicitor  for  the  State  in  the  closing  argument 
stated  to  the  jury  that  he  had  been  informed  that  there  was 
a  general  feeling  and  purpose  among  the  white  citizens  of 
the  county,  which  had  been  pretty  generally  expressed  during 
the  trial,  that  no  white  man  was  to  be  convicted  for  killing  a 
negro  until  a  certain  negro  should  be  convicted  for  killing  a 
white  man  in  the  county,  aud  that  he  referred  to  the  rumor 
not  to  create  a  prejudice  in  the  minds  of  the  jury  against  the 
prisoner,  but  to  remove  all  prejudice  from  their  minds  op- 
posed to  a  fair,  manly  aud  independent  verdict  according  to 
their  oaths,  and  to  the  law  and  testimony  in  the  case  :  it  was 
held,  that  the  prisoner  had  no  ground  for  complaint  agaiust 
the  remarks  of  the  Solicitor  as  being  improper  for  the  occa- 
sion.   State  v.  Baker,  (59  N.  0.  R.  147. 

59.  After  declaring  himself  ready  for  trial,  a  prisoner  can- 
not object  for  want  of  time  in  which  to  produce  a  paper 
alleged  to  be  in  his  possession,  having  had  two  days  notice  to 
produce  it.     State  v.  Davis,  09  N.  0.  R.  313. 

60.  It  is  no  ground  for  arresting  a  judgment  because  the 
jury  did  not  find  on  which  count  in  an  indictment  for  arson, 
the  defendant  was  guilty  ;  the  first  count  being  the  only  one 
charging  the  defendant,  the  second  charging  others  as  aiders 
aud  abetters.     State  v.  Jones,  09  N.  0.  R.  304. 

01.     On  an  indictment  charging  the  defendant  in  the  firs 


2G0  INDICTMENT— VII  —INFANCY. 

count  with  stealing,  and  in  the  second  with  receiving  stolen 
goods,  he  may  be  found  guilty  generally,  because  the  offences 
are  vof  the  same  grade,  and  the  punishment  is  the  same,  and 
the  verdict  may  be  sustained,  though  on  atrial  at  the  preceding 
term,  the  jury  found  the  defendant  guilty  of  receiving  stolen 
goods,  which  verdict  the  Judge  set  aside  and  ordered  a  new 
trial.     State  v.  Speight,  01)  S.  0.  R.  72. 

62.  In  a  criminal  trial  against  two  or  more  defendants,  the 
Judge  has  the  right  in  his  discretion  to  separate  the  evidence 
hearing  upon  the  case  of  each,  and  to  instruct  the  jury,  as  to 
what  is  competent  against  one,  and  incompetent  against 
another.     State  v.  Collins,  70  N.  0.  R.  241. 

03.  When  several  persons  are  jointly  indicted,  they  can- 
not claim  separate  trials  as  a  matter  of  right.  Such  separa- 
tion is  a  matter  of  discretion  with  the  Court.     Ibid. 

04.  In  trials  for  capital  felonies,  the  presiding  Judge  has 
the  right  to  regulate  by  reasonable  rules  and  limitations,  the 
arguments  in  the  cause :  hence,  it  is  no  good  ground  for  a 
new  trial,  that  the  counsel  of  the  prisoner  was  limited  by  the 
court,  in  his  remarks,  to  one  hour  and  a  half.     Ibid. 

05.  In  an  indictment  containing  two  counts,  one  for  lar- 
ceny and  the  other  for  receiving  stolen  goods,  the  jury  may 
bring  in  a  general  verdict  of  guilty,  the  grade  of  punishment 
being  the  same  for  each  offence.  State  v.  Baker,  70  N.  C. 
E.  530. 

00.  It  is  not  necessary  that  a  prisoner  should  be  ar- 
raigned and  plead  at  a  preceding  regular  term  to  the  Special 
Term  at  which  he  is  tried.  State  v.  Ketclxey,  70  N.  C.  E.  021. 


INFANCY. 

1.  When  an  infant  purchases  a  stock  of  goods  for  the 
purpose  of  trade  and  merchandise,  and  to  secure  the  pur- 
chase-money executed  a  note  and  mortgage  of  the  stock  of 
goods,  such  contract  is  voidable  and  may  be  disaffirmed  by 
such  infant  by  any  act  which  manifests  such  a  purpose. 
Skinner  v.  Maxwell,  00  N.  C.  E-  45. 

2.  The  effect  of  such  disaffirmance  is  to  restore  the  prop- 
erty which  remains,  to  the  person  from  whom  it  was  ob- 
tained.    Ibid. 

3.  Necessaries  for  which  an  infant  may  become  liable,  not 
only  includes  such  articles  as  are  absolutely  necessary  to  sup- 
port life,  but  also  those  that  are  suitable  to  the  state,  station 


INFANCY.— INJUNCTIONS.  2G1 

and  degree  of  life  of  the  person,  to  whom  they  are  furnished. 
Jordan  v.  CoffieU,  70  N.  0.  E.  110. 

4.  The  plaintiff,  a  merchant,  furnished  the  feme  defen- 
dant during  her  infancy  and  just  before  her  marriage,  with 
certain  articles,  among  which  was  her  bridal  outfit,  and  a 
chamber  set:  held,  that  it  was  not  error  in  the  Judge  below 
to  charge  the  jury,  if  they  believed  that  the  articles  fur- 
nished, were  actually  necessary,  and  of  a  fair  and  reasonable 
price,  the  plaintiff  was  entitled  to  recover.     Ibid. 

5.  The  obligation  of  the  mother  is  not  the  same  as  that 
of  the  tather  to  support  infant  children  ;  and  the  weight  of 
authority  both  in  this  country  and  in  England,  is  against  the 
liability  of  the  mother  to  this  burden,  except  under  peculiar 
circumstances.     Ibid. 


INJUNCTIONS. 


I.     When  to  be  granted,  and  the  prac- 
tice in  injunctions. 


II.     Of  the  injunction  bond. 


I.     WHEN  TO  BE  GRANTED,  AND  THE  PRACTICE  IN  INJUNCTIONS. 

1.  Where  there  is  reason  to  apprehend  that  the  subject 
of  controversy  in  equity  will  be  destroyed  or  removed,  or 
otherwise  disposed  of  by  the  defendant,  pending  the  suit,  so 
that  the  complainant  may  lose  the  fruit  of  his  recovery  or 
be  hindered  and  delayed  in  obtaining  it,  the  court,  in  aid  of 
the  primary  equity,  will  secure  the  fund  by  the  writ  of  se- 
questration or  the  writs  of  sequestration  and  injunction, 
until  the  main  equity  is  adjudicated  at  the  hearing  of  the 
cause.     Parker  v.  Grammer,  Phil.  Eq.  11.  28. 

2.  The  rule,  that  in  injunction  causes  all  the  defendants 
must  answer  before  a  dissolution  will  be  ordered,  will  not  be 
enforced  where  the  party  not  answering  is  not  charged  with 
any  particular  knowledge  of  the  material  facts  alleged;  and 
more  particularly  where  no  steps  have  been  taken  to  bring 
such  party  into  court.     Ijams  v.  Ijams,  Phil.  Eq  E.  39. 

3.  Where  a  bill  avers  that  the  defendant  threatens  to 
sell  tin-  article  in  dispute  and  send  it  beyond  the  limits  of 
the  .State,  and  the  answer  admits  the  averment,  with  the 
explanation  that  the  defendant  does  not  intend  to  deprive 
complainants  of  such  rights  thereto  or  its  proceeds  as  the  law 
shall  assign  them  :  held,  to  he  a.  lit  ease  tor  continuing  an  in- 
junction.    Reynolds  v.  McKenzie,  Phil.  Eq.  R.  50. 


262  INJUNCTIONS— I. 

4.  Courts  of  Equity  grant  special  injunctions  against 
trespass  with  reluctance ;  and  only  in  cases  where  but  for 
such  interference  the  injury  would  be  irreparable,  or  where 
no  redress  can  be  had  at  law.  Thompson  v.  McNair,  Phil. 
Eq.  E.  121. 

5.  Therefore  where  it  was  not  shown  that  the  defendant 
was  insolvent,  an  injunction  against  his  cutting  pine  timber, 
splitting  lightwood  and  making  tar  was  dissolved.     Ibid. 

6.  An  allegation  in  an  answer  that  the  trespasses  com- 
plained of  were  committed  by  the  defendant  in  connection 
avitli  two  other  persons  who  were  solvent,  will  be  considered 
by  the  court  as  important  upon  the  motion  to  dissolve.    Ibid. 

7.  An  injunction  will  not  be  continued  merely  because 
one  of  the  defendants  has  not  answered,  if  the  case  show 
that  the  answer  could  not  be  material  to  the  point  upon 
which  the  injunction  is  claimed.     Ibid. 

8.  Upon  motion  to  dissolve  a  special  injunction  on  the 
coming  in  of  the  answers,  held,  that  as  there  was  upon  the 
whole,  probable  cause  in  regard  to  the  primary  equity,  and 
also  ground  for  a  reasonable  apprehension  as  to  the  security 
of  the  fund,  the  injunction  should  be  continued  to  the  hear- 
ing.    Blossom  v.  VanAmringe,  Phil.  Eq.  R.  133. 

9.  Upon  such  motion  the  answer  of  one  of  several  defen- 
dants may  be  used  as  an  affidavit  in  support  of  the  bill.   Ibid. 

10.  Where  it  was  alleged  in  a  bill  that  the  complainant,  who 
was  old  and  ignorant,  bad  been  induced  by  fear  of  prosecu- 
tion, excited  by  the  defendants,  (one  of  them  a  goverment 
official  and  a  supposed  friend,)  to  transfer  bonds  and  notes  of 
a  large  amount  to  them  at  a  price  less  than  half  their  value, 
secured  by  a  bond  that  is  still  unpaid  though  long  overdue, 
and  that  the  defendants  are  insolvent;  which  allegations  were 
only  partially  denied  by  the  answers  ;  held,  upon  a  motion 
to  disolve  an  injunction  against  the  collection  or  transfer  of 
the  notes,  to  be  proper  to  look  into  the  whole  case,  and  it 
appealing  that  complainant  had  probable  grounds  for  relief,  to 
continue  the  injunction  to  the  hearing.  Key  v.  Dobson,  Phil. 
Eq.  E.  170. 

11.  One  who  files  a  bill  to  obtain  an  injunction  against  a 
suit  at  law  must  in  general  submit  to  a  judgment  in  such 
suit ;  the  only  exception  being  where  the  complainant  prays 
for  a  discovery  to  aid  him  in  his  defence  at  law.  Hunt  v. 
Sneed,  Phil.  Eq.  R.  351. 

12.  A  complainant  even  where  permitted  to  sue  in  forma 
pauperis,  is  required  to  give  bond  upon  obtaining  an  injunc- 
tion.    But  if  an  injunction   be  issued  and  objection  is  not 


INJUNCTIONS— I.  203 

made  for  several  yiars  (in  this  case  six,)  the  defendant  will  be 
presumed  to  have  waived  the  irregularity.  House  v.  Green, 
Phil.  Eq.  R.  250. 

13.  Upon  affidavit  that  the  complainant,  in  a  bill  praying 
au  injunction  against  a  writ  of  possession  in  Ejectment,  is 
committing  waste,  the  court  at  the  instance  of  the  defendant, 
will  make  an  order  in  the  cause  staying  the  waste.     Ibid. 

14.  Where  land  that  has  been  levied  upon,  is  being 
wasted,  and  the  officer  is  prohibited  from  making  sale  by  a 
Military  order,  held,  that  the  plaintiff  in  the  execution  is  enti- 
tled to  an  injunction  against  such  waste.  Webb  v.  Boyle,  63 
N.  0.  R.  271. 

15.  The  fact  that  pending  the  proceedings  for  injunction, 
the  Military  order  ceased  to  have  effect,  and  the  Stay  law 
was  pronounced  void,  does  not  affect  that  jurisdiction  for  an 
injunction,  which  existed  at  the  commencement  of  such  pro- 
ceedings.    Ibid. 

.  16.  A  motion  for  an  injunction  made  after  the  coming  in 
of  the  answer,  must  be  founded  upon  the  equity  therein  con- 
fessed :  therefore,  when  the  answer  to  a  bill  for  the  specific 
performance  of  a  contract  to  sell  land,  alleged  that  the  defen- 
dant was  a  trustee  of  the  laud  in  question,  and  as  such  sold 
it  for  Confederate  money,  at  auction,  for  cash,  on  the  22d  of 
January,  1803  ;  that  the  complainant  became  the  purchaser, 
but  did  not  comply  with  the  terms,  and  did  not  offer  the 
money  until  ten  or  twelve  months  afterwards,  when  she  ten- 
dered it  and  asked  for  a  deed,  which  was  refused :  held,  that 
an  injunction  to  restrain  the  defendant  from  prosecuting  an 
action  of  ejectment  for  such  land,  ought  not  to  have  been 
allowed.      Whitaker  v.  Bond,  63  N.  0.  R.  290 

17.  Injunctions  pending  at  the  adoption  of  the  Code  of 
Civil  Procedure,  are  to  be  proceeded  in  and  tried  under  the 
existing  laws  and  rules  applicable  thereto;  therefore,  the 
defendant  in  such  a  case  has  a  right  to  have  amotion  to  dis- 
solve upon  bill  and  answer  considered  before  a  replication 
can  he  put  in.      Waldrop  v.  Green,  63  N.  C.  R.  344. 

IS.  An  injunction  against  a  recovery  at  law,  granted  upon 
a  bill  which  stated  ;is  grounds  for  the  application,  that  the 
title  to  a  horse  which  the  plaintiff  had  obtained  by  ex- 
change from  the  defendant,  had,  failed,  and  that  the  defend- 
ant was  insolvent  and  was  seeking  to  recover  damages  from 
him  for  converting  the  horse  which  he  had  conveyed  by  ex- 
change to  the  defendant,  was  granted  improvideutly.     Ibid. 

\\).  A  purchaser  at  a  sale  under  a  trust  to  pay  debts,  who 
is  also  a  creditor  secured   in   such  trust,  cannot  enjoin  the 


264  INJUNCTIONS— I. 

trustee  from  collecting  the  purchase  money  merely  because 
he  is  a  creditor  to  a  much  larger  amount  than  he  is  debtor. 
Such  an  interference  might  derange  or  defeat  the  purposes 
of  the  trust.     Capehartv.  JEtheridge,  03  N.  0.  E.  353. 

20.  Under  the  Code  of  Civil  Procedure,  a  judge  may,  at 
the  instance  of  the  defendant,  modify  an  injunction  previ- 
ously granted,  without  giving  notice  to  the  plaintiff;  but  in 
such  case  he  must  found  his  action  merely  upon  the  com- 
plaint ;  and  cannot  consider  the  answer,  or  affidavits  ou  the 
part  of  the  defendant.     Sledge  v.  Blum,  03  N.  C.  B.  274. 

21.  SemJble,  that  an  injunction  granted  without  requiring 
a  bond,  is  only  irregular  and  not  void.     Ibid. 

22.  Inasmuch  as  the  Code  requires  injunctions  to  be 
issued  at  the  time  of  commencing  the  action  or  at  any  time 
afterwards  before  final  judment ;  and  as  by  that  Code  all 
civil  actions  must  be  commenced  by  summons  :  held,  that  an 
injunction  ordered  by  the  Judge  upon  reading  the  complaint, 
coupled  with  an  order  at  the  same  time  to  issue  a  copy  of 
the  complaint,  and  a  summons  to  the  defendant,  was  irregu- 
lar and  premature,  and  therefore  should  be  dissolved.  Pat- 
rick v.  Joyner,  03  N.  C.  R.  573. 

23.  That  a  provisional  injunction  is  granted  before  the  is- 
suing of  a  summons  in  the  case,  \s  a  mere  irregularity,  which 
if  waived  by  the  defendant,  tue  Court  will  not  notice  sua 
sponte.     Heilig  v.  Stokes,  03  N.  O.  It.  012. 

24.  The  common  injunction  (as  distinguished  from  the 
special)  is  directed  against  a  party  to  some  suit  that  involves 
an  equity  which  it  is  desired  to  protect;  and,  therefore,  does, 
not  include  a  provisional  injunction  (as  here)  in  favor  of  a  cred- 
itor, against  his  debtor  and  a  third  person,  who  are  alleged 
to  be  conspiring  to  defraud  him.     Ibid. 

25.  Therefore,  in  such  a  case  the  injunction  will  be  con- 
tinued, if  it  appear  reasonably  necessary  for  the  protection  of 
the  plaintiff's  rights  uutil  the  trial.     Ibid. 

20.  Where  a  complaint  sought  for  a  rescission  of  a  sale  of 
land,  and  an  injunction,  &c,  upon  the  ground  that  the  defen- 
dants had  agreed  to  pay  cash  upon  receiving  the  deed,  and 
to  that  end  gave  a  sight  draft,  and  that  it  had  not  been  paid,, 
and  the  drawers  were  insolvent;  and  the  answer  admitted 
those  allegations,  and  sought  to  avoid  them  by  other  matter: 
held,  that  as  there  was  an  equity  confessed,  the  injunction 
should  be  continued.     Carter  v.  Hole,  04  N.  O.  II.  34S. 

27.  In  such  case  if  some  of  the  defendants  file  a  plea  that 
they  purchased  for  valuable  consideration  and  without  noticv 
from  the  parties  who  bought  from  the  plaintiff;  upon  the  mo 


INJUNCTIONS— I.  265 

tion  to  vacate  the  injunction,  these  allegations  are  also  to  be 
treated  as  matter  of  avoidance;  aliter,  if  the  defence  had  been 
made  by  an  answer,  full  and  going  into  particulars.     Ibid. 

28.  (The  reasons  for  this  distinction  stated  and  discus- 
sed.)    Ibid 

29.  That  the  party  foiled  to  establish  a  defence  in  the  pre- 
vious action,  through  the  unexpected  absence  of  the  nominal 
plaintiff  in  the  case,  whom  he  had  not  summoned  as  a  wit- 
ness, is  no  ground  for  an  injunction  against  the  judgment  in 
such  action.     Wilder  v.  Lee,  04  N.  0.  R.  50. 

30.  An  order  to  stay  proceedings,  made,  without  notice, 
by  a  Judge  out  of  court,  for  a  longer  time  than  twenty  days, 
is  irregular  (0.  0.  P.  sec.  345,)  and  a  demurrer  to  the  com- 
plaint  in  the  action  in  which  such  order  was  made,  may  be 
treated  as  a  motion  to  vacate      Ibid. 

31.  An  injunction  granted  before  the  issuing  of  a  sum- 
mons in  the  action,  is  premature  and  irregular.  McArthur 
v.  McEuchin,  04  N.  0.  R.  72. 

32.  According  to  the  former  practice  in  equity,  a  plaintiff 
could  not  move  for  an  injunction  (even  where  prayed  for  in 
the  bill)  after  answer  filed,  except  in  term  time,  and  upon  the 
equity  confessed  in  the  answer.     Pendleton  v.  Dalton,  04  N. 

C.  R.  329. 

33.  This  was  so  even  where  the  answer  was  excepted  to 
as  being  insufficient.  In  such  case  the  plaintiff  could  bring 
on  for  healing  his  motion  for  an  injunction,  and  his  excep- 
tions, at  the  same  time.     Ibid. 

34.  Qucere,  Whether  under  the  former  system,  a  Judge 
had  the  power  to  giant  in  vacation  an  interlocutory  injunc- 
tion.    Ibid. 

35.  Observations  upon  Com mon  and  Special  mj unctions, 
in  connexion  with  the  C.  0.  P.  Jarmon  v.  Saunders,  04  N. 
(J.  R.  3(57. 

30.  An  injunction,  obtained  by  a  plaintiff  at  law  in  order 
to  preserve  property  in  litigation  until  the  determination  of 
the  suit  at  law,  having  been  dissolved:  held,  that  no  refer- 
ence, to  ascertain  damages  sustained  by  the  defendant  because 
of  such  injunction,  or  other  proceedings  upon  the  injunction 
bond,  could  be  had  until  after  the  determination  of  the  suit 
at  law.     Thompson  v.  McNair,  04  N.  0  R,  44S. 

;;7.  Where  the  defendant,  upon  amotion  to  dissolve  an 
injunction,  uses  his  answer  as  an  affidavit,  the  plaintiff  has  a 
right  to  oiler  affidavits  additional  to  his  complaint.  Howerton 
v.  Sprague,  64  X.  0.  R  -151. 

38.     The  defendant,  as  assignee  in  bankruptcy  of  the  Bank 


266  INJUNCTIONS— I. 

of  North  Carolina,  had  obtained  judgment  against  the  plain- 
tiffs, upon  a  note  made  by  them  to  the  bank ;  an  execution 
coming  to  the  hands  of  the  sheriff,  the  plaintiffs,  "  being  un- 
able to  obtain  bills  upon  said  bank,"  tendered  to  the  sheriff 
one-half  of  the  amount  of  the  judgment,  in  currency,  in  satis- 
faction of  the  whole,  which  being  refused,  they  obtained  an 
injunction:  held,  that  it  had  been  granted  improvidently. 
Smith  v.  Dewey,  64  N.  C.  E.  464. 

39.  Where  a  complaint  charges  that  money  used  iu  a  cer- 
tain transaction,  was  that  of  A,  and  not  (as  A  and  B  claimed 
it  to  be)  that  of  B  ;  answers  by  A  and  B,  that  the  money  ad- 
vanced by  the  latter  was  "  money  under  his  control,  and  was 
not  the  money  of  A,v  were  held  to  be  evasive  and  unsatisfac- 
tory ;  iu  not  stating  whether  or  not  such  money  ivas  placed 
under  the  control  of  B  through  any  agency  of  A.  Iiuss  v. 
Gulick,  64  N.  C.  R.  301. 

40.  The  transaction  being,  the  contribution  of  their  re- 
spective proportions  of  a  debt  by  two  co-sureties,  of  whom  A 
was  one  and  the  plaintiff  the  other  ;  held,  that  an  admission 
by  A  and  B  of  their  purpose  to  compel  the  plaintiff  to  pay 
the  whole  debt,  was  an  equity  confessed,  and  their  setting  up, 
as  their  justification  therefor,  an  agreement  by  said  co-sure- 
ties, made  after  their  engagement  as  sureties,  whereby  the 
plaintiff"  was  to  pay  the  whole,  was  matter  in  avoidance  of 
such  equity,  and  so,  not  to  be  noticed  at  this  particular  stage 
of  the  proceedings,  viz:  amotion  to  vacate  an  injunction. 
1  bid. 

41.  It  is  improper  to  make  a  Sheriff  party  to  an  order  of 
injunction  against  process  iu  his  hands.  Jarman  v.  Saun- 
ders, 64  N.  C.  E    367. 

42.  Where  an  injunction  is  issued  under  an  order  that 
the  plaintiff  shall  give  an  undertaking  with  sufficient  sureties 
in  a  certain  sum  prescribed  in  the  C.  0.  P.,  sec.  192,  it 
seems  that  a  deposit  in  money  of  the  sum  named,  will  be  suf- 
ficient, but  whether  so  or  not,  the  giving  by  the  plaintiff  of 
the  required  undertaking  before  the  hearing  of  a  motion  to 
vacate  the  injunction  for  the  want  of  it,  will  supply  the  al- 
leged defect  aud  prevent  the  injunction  from  being  vacated 
on  that  account.     Richards  v.  Baurman,  65  N.  C.  E.  162. 

43.  An  injunction  taken  out  before  issuing  a  summons  is 
irregular,  and  will  be  vacated  on  motion,  llersh  v.  White- 
head, 65  N.  C  E.  516. 

44.  It  is  erroneous,  in  an  action  brought  to  prevent  irre- 
parable injury  by  a  sale  of  land,  to  try  the  question  of  title 
on  affidavits,  and  therefore  where,  from  the  affidavits  on  both 


INJ  UNCTIONS— I.  267 

sides,  there  is  reasonable  grouucl  to  support  the  averment  of 
the  plaintiff,  that  the  vendors  (the  defendants)  are  not  able 
to  make  good  title,  an  order  enjoining  a  mortgagee,  under  a 
mortgage  to  secure  the  purchase  money,  will  not  be  vacated, 
until  the  question  of  title  has  been  tried  in  the  usual  way. 
Howsev.  Mauney,  6G  N.  0.  R  218 

45.  Where  laud  is  sold  by  deed  and  the  vendee  imme- 
diately re-conveys  by  mortgage,  to  secure  the  payment  of  the 
purchase  money,  enters  into  possession  and  makes  valuable 
improvements,  and  obtains  an  injunction  to  restrain  a  threat- 
ened sale  under  the  terms  of  the  mortgage,  and  the  order  is 
continued  to  the  hearing :  held,  that  the  defendants  might 
move  for  a  receiver.     Ibid. 

40.  A  railway  company  having  a  right,  by  virtue  of  its 
charter,  to  locate  its  road-bed  ou  a  certain  portion  of  the  land 
of  B,  he  proposes  by  letter,  that  if  the  company  will  refrain 
from  such  location,  it  may  locate  it  over  another  portion  of 
his  laud :  Provided,  it  would  open,  grade  and  put  in  order  a 
street  on  that  pait  in  front  of  his  house  eighty-five  feet  wide. 
The  company  accept  the  proposition,  locate  their  road-bed 
accordingly,  iu  December,  1869,  bat  foil  to  open  the  street, 
&c,  as  late  as  September,  1871.  The  compauy  became  in- 
solvent before  September,  1871,  and  executed  a  mortgage  of 
its  property.  In  September,  1871,  B  notified  the  compauy 
that  unless  the  condition  was  performed  within  15  days,  he 
would  repossess  himself  of  the  land  covered  by  the  road-bed  ; 
held,  that  the  injury  threatened  is  within  the  technical  mean- 
ing of  irreparable  damage,  and  the  company  is  entitled  to 
have  the  injunction  continued  to  the  hearing  upon  the  equity 
confessed  in  the  answer,  but  it  was  erroneous  to  perpetuate 
the  injunction  before  a  final  hearing.  \V.  &  T.  R.  R.  Co.  v. 
Battle,  M  N.  C  K.  540. 

47.  A  bargainee  in  a  quit-claim  deed,  has  no  legal  claim 
for  damages  if  the  title  proves  defective,  nor  to  enjoin  an 
execution  issued  upon  a  judgment  based  upon  the  purchase- 
nioney.     McKesson  v.  Henesee,  66  N.  (A  It  473. 

^8.  In  ascertaining  the  damages  sustained  by  reason  of 
an  injunction  under  the  C.  C.  P.,  reference  must  be  had  to 
the  condition  of  the  debt  enjoined  ;  it,  by  reason  of  the  de- 
lay, the  judgment  debtor  has  become  insolvent,  the  whole 
debl  would  properly  be  included  as  damages  sustained  by  it; 
if  his  pecuniary  circumstances  remained  unaltered,  no  dam- 
ages are  sustained  except  tic  costs  and  disbursements.  Ibid, 
V.i  Whether  on  a  clear  case  for  an  injunction,  made  by 
the  complaint  filed  in  a    Probate  Court,  this  Court  would 


268  INJUNCTIONS— I. 

force  a  plaintiff  by  dismissing  his  action  to  begin  cle  novo  in? 
the  Probate  Court,  discussed,  but  deemed  unnecessary  to  be 
decided,  as  the  Court  does  not  consider  such  a  case  made  by 
the  complaint.     Sprinkle  v.  Hutclxeson,  66  N.  C  E.  450. 

50.  A  complaint  which  alleges  that  an  executor  had 
power  to  sell  land  under  the  will  and  sold  for  Confederate 
money,  received  it  and  is  about  to  make  the  purchaser  a 
title,  that  the  executor  is  insolvent,  and  is  wasting  the  assets, 
but  does  not  charge  collusion  witii  the  purchaser — does  not 
present  a  case  entitling  the  plaintiff  to  injunctive  relief. 
Ibid. 

51.  Upon  a  motion  to  dissolve  an  injunction,  where  a 
fund  has  been  taken  in  custody  of  the  law,  the  rule  is,  that  as 
the  court  has  hold  of  it,  it  will  not  let  it  go,  if  the  plaintiff 
show  probable  cause  from  which  it  may  be  reasonably  inferred 
that  he  will  be  able  to  make  out  his  case  on  the  final  hearing. 
On  the  contrary,  if  it  appear  from  the  pleadings  and  affida- 
vits that  there  is  not  probable  cause,  the  injunction  will  be 
dissolved.     Cracoff  v.  Morehead,  67  N.  C.  R.  422. 

52.  In  an  application  for  an  injunction,  an  affidavit  for  it 
made  by  a  person  not  a  party,  that  what  he  has  stated  in  the 
complaint  as  of  own  knowledge  is  true,  &c,  is  insufficient, 
because  not  being  a  party  he  has  stated  nothing.  Martin  v.. 
Sloan,  69  N.  C  R.  128. 

53.  A  perpetual  injunction  against  issuing  au  execution  on 
a  judgment  at  law,  granted  upon  motion  and  affidavits  is  erro- 
neous. It  is  not  in  accordance  with  and  allowable  mode  of 
proceeding  under  the  old  system  or  the  new.  Whitehurst  v. 
Green,  69  N.  C.  R  131. 

54.  An  order  restraining  the  sale  of  certain  premises,  to- 
which  the  plaintiff  claims  title,  will  be  continued  to  the  final 
hearing,  and  the  plaintiff's  right  protected,  if  the  complaint 
and  affidavits  disclose  merits  on  his  part.  Dockery  v.  French* 
69  N.  C.  R.  308. 

55.  Wheu  the  allegations  in  the  complaint  upon  which  it 
is  sought  to  set  up  injunctive  relief,  are  fully  met  by  the 
answer,  the  restraining  order  first  issued  will  be  set  aside, 
and  an  injunction  until  the  hearing  refused.  Woodjin  v. 
Beach,  70  N.  C.  R.  455. 

56.  When  the  dissolution  of  an  injunction  would  be 
equivalent  to  a  dismissal  of  the  action,  if  a  reasonable  doubt 
exists  in  the  mind  of  the  court,  whether  the  equity  of  the 
complaint  be  sufficienly  negatived  by  the  answer,  the  court 
will  not  dissolve  the  injunction  but  continue  it  to  the  hearing. 
Lowe  v.  Commissioners  of  Davidson,  70  N.  C  R.  532. 

See  (Partnership,  8,  9,"  20) 


INJUNC— INSANITY.— INSOLV.  DEBTORS.     2G9 


II.     OF  THE  INJUNCTION  BOND. 


1.  Before  judgment  can  be  given  upon  an  injunction 
bond,  the  party  alleging  that  lie  has  been  damnified  by  rea- 
son of  said  injunction,  must  establish  the  quantum  of  dam- 
ages sustained.     Hi/man  v.  Devereux,  Go  N.  0.  E.  588. 

2.  The  quantum  of  damages  recoverable  by  a  party 
injured  under  the  old  system,  as  compared  with  the  amount 
under  the  C.  0.  P.,  discussed.     Ibid. 

3.  A  bond  for  85,000  given  by  a  party  upon  obtaining 
an  injunction,  and  one  for  $10,000  given  by  a  receiver  upon 
being  appointed  such,  are  palpably  insufficient  where  several 
hundred  thousand  dollars  are  involved  in  the  issue.  Martin 
v.  Sloan,  08  N.  O.  K.  128.     See  (Process  0.) 


INSANITY. 

If  a  prisoner  at  the  time  he  committed  homicide  was  in  a 
state  to  comprehend  his  relations  to  other  persons,  the  nature 
of  the  act  and  its  criminal  character,  or  if  he  was  conscious  of 
doiug  wroug  at  the  time  he  committed  the  act,  he  is  responsi- 
ble. But  if,  on  the  contrary,  he  was  uuder  the  visitation  of 
God,  and  could  not  distinguish  between  good  and.  evil,  and 
did  not  know  what  he  did,  be  is  not  guilty  of  any  offence 
against  the  law,  as  guilt  arises  from  the  mind  and  wicked  will. 
State  v.  llai/ wood,  Phil.  L.  R,  37G. 

See  (Evidence — In  cases  relating  to  Wills  and  Testaments, 
1,  2,  3,  6.) 


INSOLVENT  DEBTORS. 

1.  The  effect  of  the  Act  of  18GG-'G7,  eh.  03,  sec.  1,  is  to 
abolish  imprisonment  for  debt  in  all  cases.  Bunting  v. 
Wright,  Phil.  L.  R.  295. 

2.  Where  an  issue  of  fraud  on  a  ca.  .s«.  in  the  county 
court  was  found  against  the  defendant  and  he  appealed  to 
the  Superior  Court,  and  upon  being  called  failed  to  appear: 
lield,  that  the  act  abolishing  imprisonment  for  debt  rendered 
it  proper  for  the  Judge  to  refuse  to  give;  judgment  on  the 
appeal  bond,  it  being  in  this  case  in  the  nature  of  a  bail 
bond.     Ibid. 


270    INSOLVENT  DEBTORS.— INST.  D.  &.  D.  &  B. 

3.  In  such  cases,  as  the  law  has  put  an  end  to  the  object 
of  litigation,  each  party  must  pay  his  own  costs.     Ibid. 

4.  One  who  has  been  committed  under  an  attachment 
for  not  paying  money  as  ordered  by  a  court,  can  be  discharged 
only  by  payment,  or  by  resorting  to  the  relief  given  by  the 
insolvent  debtor's  act.     Wood  v.  Wood,  Phil.  L.  JR.  538. 

5.  The  act  of  1866-67,  abolishing  imprisonment  for  debt, 
does  not  embrace  cases  of  commitment  under  attachment  for 
a  failure  to  comply  with  an  order  of  court.     1  bid 

6.  The  first  proviso  to  sec.  2,  oh.  53,  Acts  of  1866-'67, 
(in  regard  to  defendants  ''about  to  remove,"  &c.,)  does  not 
apply  to  the  case  of  one  who,  as  is  stated  "  is  beyond  the 
jurisdiction  of  the  Court ;"  nor  does  it  apply  to  a  case  where 
there  is  no  affidavit  of  the  fact.  McKay  v.  Bay,  63  N.  C. 
R.  46. 

7.  An  insolvent  debtor,  in  a  deed  made  by  him,  may  prefer 
one  creditor  to  another,  if  he  does  it  bona  fide  and  with  no 
fraudulent  intention.  Such  a  preference  being  fraudulent 
and  void  only  in  case,  proceedings  to  have  the  debtor  adju- 
dicated a  bankrupt,  are  commenced  within  six  months  after- 
wards.    Hislop  v.  Hoover,  68  N.  0.  R.  141. 

8.  The  action  against  the  creditor  for  the  jail  fees  of  an 
insolvent  debtor,  given  by  Rev.  Code,  ch.  50,  sec.  5  to  the 
jailor,  cannot  be  maintained  by  the  sheriff  as  the  jailor's 
principal.     Bunting  v.  Mcllhenny,  Phil.  L.  R.  579. 


INSTITUTION    FOR    THE    DEAF    AND 
DUMB   AND    THE    BLIND. 

1.  An  appointee  of  a  Board  of  Directors  of  an  Institution 
authorized  to  make  by-laws,  is  bound  by  all  the  provisions  of 
the  by-laws  in  force  at  the  time  of  his  appointment.  Ellis  v. 
N.  C.  Institution  for  the  Deaf  and  Dumb  and  the  Blind,  68 
N.  0.  R.  243. 

2.  The  appointment  of  a  de  facto  Board  of  Directors  must 
have  the  same  force  and  effect  as  if  made  by  a  legular  legal 
board;  and  the  acceptance  of  an  appointment  by  one  is  con- 
sidered that  the  acceptance  is  to  be  governed  by  the  by-laws 
then  in  force.     Ibid. 


INSURANCE.  271 


INSURANCE. 

1.  In  a  case  where  a  Masonic  Insurance  Company  provid- 
ed, by  a  by-law,  that  the  proceeds  of  policies  therein,  should 
be  paid  "  to  the  widow,  *  *  for  the  benefit  of  herself  and 
the  dependent  children  of  the  deceased,"  with  a  permission  to 
the  party  insured,  to  appoint  an  executor  to  disburse  snch 
proceeds  ;  aud  a  prohibition  against  any  disposal,  "  by  will  or 
otherwise,  so  as  to  deprive  his  widow  or  his  dependent  chil- 
dren of  its  benefits;" — aud  the  widow  owned  $2,000  worth  of 
other  property :  held,  that  a  bequest  by  one  insured,  of  a  pol- 
icy of  $4,012;  giving  to  his  widow,  $1,000,  and  the  remain- 
der to  an  only  child,  (there  being  no  other  property  owned  by 
him,)  was  not  an  unreasonable  exercise  of  the  discretion  vest- 
ed in  him  as  above.     Roberts  v.  Roberts,  64  N.  C  R.  095. 

2.  The  application  for  a  policy  of  insurance,  forms  a  part 
of  the  contract  of  insurance  where  the  policy  refers  to  it  as 
such,  and  in  an  action  by  the  insured  on  such  policy,  the  bur- 
den of  proof  is  upon  the  plaintiff.  Bobbitt  v.  L.  &  L.  &  G. 
Insurance  Co ,  06  N.  C.  E.  70. 

3.  The  application  must  be  set  out  in  the  complaint,  and 
being  in  the  nature  of  a  condition  precedent,  the  truth  of  its 
representations  must  be  proved  by  him.     Ibid. 

4.  A  representation  as  to  the  value  of  property  insu- 
red, is  material,  even  though  the  policy  contains  a  stipula- 
tion to  pay  the  two-thirds  of  the  real  value  or  less  if  the  loss 
were  not  so  much  ;  but  the  doctrine  of  the  immateriality  does 
not  apply  in  such  a  case,  the  representation  forming  a  part  of 
the  contract,  and  being  made  in  response  to  a  direct  ques- 
tion.    Ibid. 

5.  A  charge  in  such  a  case,  that  the  application  was  not 
a  part  of  the  contract,  that  the  declaration  as  to  the  value  by 
the  insured  was  a  mere  representation,  and  that  the  only 
question  for  the  consideration  of  the  jury  was  the  value  of 
the  property  burnt,  is  erroneous,  and  the  error  is  not  cured 
by  the  remark  afterwards  made  to  the  jury,  that  unless  such 
statements  were  fraudulent  aud  false,  they  would  not  bar  the 
plainiff's  right  to  recover.     Ibid. 

6.  Even  treating  the  statement  as  to  the  value  as  a  rep- 
resentation, it  is  not  a  correct  principle,  that  to  prevent  a 
recovery,  it  is  necessary  to  show  that  the  statement  was 
fraudulent  as  well  as  false,  and  herein  lies  the  difference  be- 
tween a  representation  as  an  opinion  and  a  representation  of 
a  fac  t.     I  bid. 


272  INSURANCE—  INTEREST. 

7.  It  is  sufficient  to  avoid  the  policy  that  tbe  representa- 
tions were  false,  however  honestly  made — if  material  they 
must  be  perfectly  true.     Ibid. 

8.  Cue  whose  property  is  insured  at  bis  own  request  in 
tbe  name  of  another,  being  bis  agent,  bas  an  insurable  in- 
terest.    Ibid. 

9.  An  insurance  company  is  not  bound  by  any  private 
arrangement  entered  into  by  their  agent,  acting  without  tbe 
knowledge  or  authority  of  the  company  in  respect  to  tbe  pay- 
ment of  tbe  premium  on  a  policy  of  insurance.  Especially 
is  this  so,  when  tbe  company,  instead  of  affirming  tbe  action 
of  the  agent,  gives  notice  to  tbe  assured,  to  "pay  bis  note 
when  due,  and  save  his  policy."  Ferebee  v.  N.  C.  Home  Ins. 
Co.,  68  N.  C.  R.  11. 

10.  Although  an  insurance  company  may  waive  the  right 
to  declare  a  policy  void,  for  the  reason  that  a  note  given  for 
cash  premium  is  not  paid  at  maturity  ;  still  such  waiver  does 
not  preclude  the  company  from  insisting  upon  a  condition 
contained  in  the  policy,  declaring  it  void,  in  case  of  loss  or 
damage  by  fire,  if  the  note  so  given,  or  any  part  thereof, 
shall  remain  unpaid  and  past  due,  at  the  time  of  such  loss 
or  damage.     Ibid. 

See  (Corporation,  2,  3,  4,  5,  6.) 


INTEREST. 

1.  When  interest  upon  an  account  is  charged  upon  a 
wrong  principle,  if  no  substantial  damage  is  done  to  either 
party  tbe  court  will  not  disturb  it.  Fhelan  v.  Hutchinson, 
Phil.  Eq.  R.  116. 

2.  Coupons,  when  detached  from  the  bond  to  which  they 
were  annexed,  bear  interest  from  the  time  when  they  were 
due  and  payable.  Burroughs  v.  (Jommissisners  of  Richmond ', 
65  N.  C.  E.  234 

4.  Whether  interest  on  a  guardian  note  can  be  com- 
pounded after  his  death,  quere,  but  such  difficulty  may  be 
obviated  by  a  remission  of  the  interest  alleged  to  be  in  excess, 
even  in  this  court     Biggs  v.  Williams,  66  N.  C.  R.  427. 

4.  When  a  promissory  note  is  given  with  a  stipulation 
that  the  interest  is  to  be  paid  annually  or  semi-annually,  the 
maker  is  chargable  with  interest  at  the  like  rate  upon  each 
deferred  payment  of  interest,  as  if  he  had  given  a  promissory 
note  for  the  amount  of  such  interest.     By  this  mode  a  com- 


INTEREST.  273 

putation  compound  interest  is  not  given,  but  a  middle  course 
is  taken  between  simple  and  compouud  iuterest.  Bledsoe  v. 
Nixon,  (39  N.  C  R.  89. 

5.  The  rule  for  computing  interest  on  a  bond  given  in 
South  Carolina,  "interest  to  be  paid  annually,  otherwise  to 
become  principal,"  is  to  calculate  the  interest  upon  the  prin- 
cipal for  the  first  year,  setting  the  interest  aside,  and  then 
for  the  second,  third  and  so  on  until  the  time  for  the  tirst 
payment.  Then  calculate  the  interest  on  each  year's  inter- 
est to  the  same  time,  and  apply  the  payment  first  to  the  ex- 
tinguishment of  this  interest,  and  the  surplus,  if  any,  to  a 
reduction  of  the  principal.  If  the  payment  is  not  sufficient 
to  pay  this  interest,  first  extinguish  the  interest  calculated 
on  each  year's  interest,  and  apply  the  surplus  to  the  princi- 
pal iuterest  as  far  as  it  will  go.  If  the  payment  is  not  enough 
to  satisfy  the  interest  on  the  interest,  it  is  set  aside,  and 
neither  stops  nor  bears  interest.  Bratton  v.  AUison,  70  N. 
C.  R.  498. 

6.  A  tender  of  Confederate  money  to  be  valid  to  stop 
interest  should  be  accompanied  with  an  offer  to  pay  the 
scaled  value  of  the  note  or  claim  sued  upon  ;  otherwise,  in- 
terest will  run  from  the  demand  of  payment,  or  from  the 
time  the  process  in  the  actiou  is  served.  Tate  v.  Smith,  70 
N.  C.  R.  685. 

7.  Where  it  was  found  on  the  trial  below,  that  the  de- 
fendants were  ready,  able  and  willing,  and  offered  to  pay  in 
Confederate  money  the  amount  of  two  notes  due  the  plain- 
tiff, soon  after  they  fell  due  in  February,  1864,  which  offer 
was  refused :  held,  that  the  offer  to  pay  stopped  the  interest 
from  the  time  it  was  made  until  the  date  or  service  of  the 
summons  in  the  action  brought  to  recover  the  notes.  Bank 
of  Charlotte  v.  Stenlwuf.e,  70  N.  C.  R.  703. 

See  (Banks  and  Bank  Notes,  1,  2,  14.) 


18 


274 


JUDGMENTS— I.— II.— Ill  —IV 


JUDGMENTS. 


I.     Confession  of  judgment. 
II.     Judgment  by  default. 

III.  On  joint  and  several  notes. 

IV.  Judgments  against  executors, 

administrators  and  heirs. 
V.     Interlocutory  judgment. 
VI.    Docketing  judgments  and   its 

effect. 
VII.     In  what  solvable. 


VIII.     Satisfaction  of  judgments. 
IX.     Of  the  effect  of  a  judgment. 
X.     Of  proviug  and  enforcing  judg- 
ments. 
XL     Of  dormant,    irregular,    void 

and  erroneous  judgments. 
XII.     Of  vacating  judgments. 
XIII.     Petition  to  re-hear  judgments. 


I.    CONFESSION  OF  JUDGMENT. 


It  is  a  well  recognized  practice  to  confess  a  judgment  with 
a  defeasance,  and  the  Courts  will  take  notice  of  the  condition,, 
and  will  not  permit  an  execution  to  issue  in  violation  of  it. 
1  Tidd.  Pr.  560.     Hardy  v.  Reynolds,  69  N.  C  R.  7. 


II.     OF  JUDGMENTS  BY  DEFAULT. 

See  (Judgments — Of  proving  and  enforcing  judgments,  4, 
5,  6,  7,  8.)  (Judgments — Of  vacating  judgments,  4,  5,  6,. 
12,  16,  17,  23,  24,25,  27,  35.) 

III.     ON  JOINT  AND  SEVER.'  L  NOTES. 

1.  If  A  and  B  executed  a  joint  and  several  note,  a  judg- 
ment against  A  is  no  bar  to  an  action  against  B.  The  cred- 
itor may  take  several  judgments  and  make  bis  money  out  of 
either  of  them,  or  make  a  part  out  of  one  and  a  part  out  of 
the  other.     Hix  v.  Davis,  68  N".  C.  R.  231. 

2.  Debts,  the  amount  of  which  are  certain  and  made  so 
by  the  act  of  the  parties,  and  claims  for  damages  for  torts,  the 
amount  of  which  are  uncertain,  and  depend  upon  the 
finding  of  a  jury,  commented  on,  explained  and  distinguished 
from  each  other  by  Chief  Justice  Pearson.     Ibid. 


IV.     OF  JUDGMENTS  AGAINST  EXECUTORS,  ADMINISTRATORS  AND  HEIRS. 

A  judgment  confessed  by  executors  will  bind  them  in 
their  individual  capacity,  though  they  style  themselves  as 
executors  in  making  such  confession.  Hall  v.  Craige,  65 
N.  C  R.  51. 


JUDGMENTS— Y.—YI.  275 

V.     INTERLOCUTORY  JUDGMENT. 

When  an  action  under  the  old  system  was  brought  for 
goods  sold  and  delivered  to  the  defendant,  and  he  demurs 
thereto,  if  the  Court  overrules  the  demurrer,  it  would  be  irreg- 
ular to  grant  a  final  judgment,  but  such  judgment  must  only 
be  interlocutory,  and  the  inquisition  of  a  jury  is  necessary  to 
ascertain  the  value  of  goods  so  sold  after  having  the  proofs  of 
both  parties  to  the  action.  Merwin  v.  Ballard,  66  N.  C  li. 
398. 

See  (Judgments — Of  vacating  judgments,  43,  44.) 

VI.     DOCKETING  OF  JUDGMENTS  AND  ITS  EFFECT. 

1.  A  judgment  given  by  a  magistrate  in  one  county  can- 
not be  docketed  in  another,  unless  previously  docketed  in  the 
former  county ;  and  what  is  allowed  to  be  docketed  in  the 
latter  county  is,  the  transcript  of  the  judgment  as  docketed 
in  the  former.     McAden  v.  Banister  03  N.  0.  R.  478. 

2.  Where  a  docketed  judgment  is  relied  as  authority  for 
an  arrest  of  the  person  by  process  of  execution  thereunder,  it 
is  necessary  that  the  affidavit  and  order  of  arrest  in  the 
Court  ot  the  Magistrate  shall  be  docketed  with  the  judgment. 
Aliter,  if  such  judgment  is  to  be  enforced  by  execution 
against  land  only.     Ibid. 

3.  Upon  an  appeal  from  an  order  of  the  clerk,  to  the 
judge,  the  latter  may  hear  any  evidence  that  would  have 
been  competent  before  the  former,  although  in  fact  not  in- 
troduced.    Ibid. 

4.  In  a  case  where  the  question  before  the  clerk  (or 
judge)  of  the  second  county,  is  as  to  the  right  to  issue  pro- 
cess of  execution  against  the  body  of  the  defendant,  it  is  not 
competent  for  him  to  hear  parol  evidence,  to  show  that  an 
affidavit  and  an  order  of  arrest  were  in  fact  made  before  the 
magistrate  in  the  first  county,  although  the  transcript  shows 
none.     Ibid. 

.">.  rJ  he  judgment  as  actually  docketed  is  the  only  au- 
thority for  the  execution  named;  the  form  of  the  docketed 
judgment  depends  upon  that  of  the  transcript  actually  sent. 
Ibid. 

6,  The  judgment  may  be  properly  docketed  from  the 
original  papers  before  the  magistrate,  instead  of  from  a 
transcript  of  them.     Ibid. 

7.  Amendments  of  the  judgment  before  the  magistrate, 
or  of  the  transcript,  can  be  made  only  before  the  tribunal 
which  rendered  the  one  or  issued  the  other.     Ibid. 


27G  JUDGMENTS— VI. 

8.  Where  a  Sheriff  has  notice  that  there  is  a  dispute  as 
to  his  right  to  collect  from  the  defendant  certain  money,  and 
afterwards  pays  such  money  to  the  plaintiff,  pending  the 
controversy :  held,  that  upon  its  being  decided  that  such 
money  was  improperly  collected,  the  order  to  return  it  to  the 
defendant,  is  properly  directed  to  the  sheriff.     Ibid. 

9  The  provision  of  the  Code  0.  P.  giving  plaintiffs  hav- 
ing judgment,  three  years  in  which  to  issue  execution,  applies 
to  judgments  pending  at  its  adoption:  th  erefore,  a  plaintiff 
iu  such  a  judgment  which  at  the  time  of  application  was 
more  than  a  year  old,  had  a  right  to  have  it  docketed.  Har- 
ris v.  Hill,  63  N.  0.  R.  053. 

10.  Qucere,  whether  a  creditor  by  prior  docketed  judgment, 
who  places  his  execution  in  the  sheriff's  hands  after  a  sale, 
can  intercept  its  proceeds  to  the  prejudice  of  the  creditors  by 
subsequent  docketed  judgments,  whose  executions  were  in 
the  sheriff's  hands  at  the  sale.     Ibid. 

11.  The  503d  sec.  of  the  0.  C.  P.,  which  provides  for  the 
docketing  a  justice's  judgment  in  the  office  of  the  Clerk  of 
the  Superior  Court  of  the  county,  so  as  to  make  it  a  judg- 
ment of  the  Superior  Court  from  the  time  of  its  being  dock- 
eted, is  not  repealed  by  the  act  of  1868-'9,  chap.  76,  entitled 
"  An  act  suspending  the  Code  of  Civil  Procedure  iu  certain 
cases."     Bates  v.  Bank  of  Fayetteville,  G5  N.  C.  R.  81. 

12.  Where  a  vendor  of  land  receives  a  part  of  the  pur- 
chase money,  and  takes  notes  for  the  residue  thereof,  retain- 
ing the  title  until  said  notes  shall  be  paid,  and  afterwards  a 
judgment  is  obtained  and  docketed  against  him,  and  he  then 
dies,  the  judgment  will  not  be  a  lieu  upon  the  land  or  the 
notes  in  the  hands  of  the  executors,  but  the  notes  will  be 
assets  when  collected  for  the  payment  of  the  debts.  Moore 
v.  Byers,  05  N.  C .  R.  210 

13.  Where  two  or  more  plaintiffs  had,  prior  to  the  adop- 
tion of  the  new  Constitution  and  Code  of  Civil  Procedure, 
obtained  judgments  at  the  same  term  of  the  county  court  of 
a  county,  and  then  after  such  Constitution  and  Code  had 
been  adopted,  transfers  them  to  the  docket  of  the  Superior 
Court,  at  different  times,  but  all  within  six  months,  as 
required  by  sees  400  and  403  of  the  Code  of  Civil  Procedure, 
and  had  then  issued  executions  on  them  at  different  times, 
but  all  came  to  the  sheriff 's  hands  before  the  sale  of  the  de- 
fendant's land;  it  was  held,  that  under  art.  4,  sec.  35,  of  the 
Constitution,  which  ordains  that  "  actions  at  law,  and  suits 
Equity,  pending  when  this  Constitution  shall  go  into  effect, 
shall  be  transferred  to  the  courts  having  jurisdiction  thereof, 


JUDGMENTS— YL  277 

without  prejudice  by  reason  of  the  change,"  the  proceeds  of 
the  sale  under  the  executions  shall  beappplied^ro  rata  to  all 
of  them.     Jolinson  v.  Sedberry,  Go  IS".  C.  R.  1 

14.  If  a  number  of  Justice's  judgments  be  docketed  in 
the  Superior  Court,  they  will,  under  the  0.  0.  P.,  be  a  lien 
upon  the  land  of  the  defendant  from  the  time,  when  they 
were  docketed,  and  will  have  a  priority  over  a  judgment  ob- 
tained in  court  by  another  person  against  the  same  defen- 
dant at  a  subsequent  time,  and  though  an  execution  be  issued 
on  the  latter,  and  the  sheriff  levies  it  on  the  land  and  adver- 
tises it  for  sale,  yet,  if  before  the  sale  executions  are  issued 
on  a  part  of  the  justice's  docketed  j  udgments  and  are  placed  i  n 
the  hands  of  the  sheriff,  the  proceeds  of  the  sale  of  the  land 
must  be  first  applied  to  the  payment  of  all  the  justice's  judg- 
ments.    Perry  v.  Morris,  65  N".  0.  R.  221. 

15.  The  lien  on  the  land  of  the  defendant  acquired  by  a 
docketed  judgment  shall  not  be  lost  in  favor  of  a  judgment 
subsequently  docketed,  unless  the  plaintiff  in  the  latter  take 
out  execution  and  give  the  plaintiff  in  the  former  twenty  days' 
notice  before  the  day  of  sale  by  the  sheriff,  and  the  plaintiff 
so  noticed  fail  to  take  out  execution  and  put  it  into  the  sheriff 's 
hands  before  the  day  of  sale  as  is  prescribed  in  the  19th  rule 
of  practice  adopted  by  the  Supreme  Court  at  June  Term, 
1869.     Ibid. 

16.  The  fact  that  a  judgment  docketed  in  one  county  is, 
afterwards  docketed  in  another,  does  not  deprive  it  of  the  lien 
it  had  on  the  defendant's  land  in  the  first  county.     Ibid 

17.  Prior  to  the  adoption  of  the  C  C.  P.,  the  lien  acquired 
by  fi.  fa.  expired  at  its  return.  Therefore,  judgments  obtain- 
ed at  Spring  and  Fall  Terms,  186!),  of  Guilford  Superior 
Court,  and  docketed  respectively  during  the  terms  of  said 
Court,  have  priority  over  a  judgment  obtained  in  1867,  upon 
which  fi.  fas.  regularly  issued  up  to  Fall  Term,  1868,  of  the 
Superior  Court  of  Alamance,  and  no  returns  made  thereto, 
at  which  term  the  said  judgment  was  transferred  and  entered 
on  the  judgment  docket  of  Alamance  Superior  Court,  but  not 
docketed  in  Guilford  county  till  24th  December,  1869.  Boss 
v.  Alexander,  65  N.  C  R.  576. 

18.  The  law  takes  notice  of  the  fractional  parts  of  a  day, 
when  there  is  a  conflict  between  creditors  arising  as  to  the 
application  of  money  received  on  Justices'  judgments  filed 
and  docketed  on  the  same  day.  Sec.  503,  0.  0.  P.  (Bat. 
Rev.  c.  6:;,  s.  19.)  Therefore,  judgments  filed  and  docketed 
at  2  o'clock,  30  minutes,  P.  M.,  have  priority  over  judgments 
tiled  and  docketed  at  a  later  hour  of  the  same  day.  Bates  v 
Hinsdale,  65  X.  C.  R.  423. 


278  JUDGMENTS— VI.— VII.— VIII. 

19.  By  virtue  of  sec.  254,  0.  C.  P.,  (Bat.  Rev.  c.  17,  s. 
254)  a  judgment  from  the  time  it  is  docketed  is  a  lien  on  all 
the  interest  of  whatever  kind  the  defendant  has  in  real  estate, 
whether  it  be  such  as  can  be  seized  under  the  execution  or 
not.     Iloppoclc,  Glenn  &  Co.  v.  Shober,  69  N.  U.  R.  153. 

20.  Under  our  former  system  a  judgment  did.  not  bind 
lands  proprio  vigor  a,  but  if  an  execution  (fi.  fa)  was  taken 
out  upon  the  judgment,  it  would  bind  the  land  from  its  teste, 
and  the  lien  thus  acquired  could  be  continued  by  issuing  of 
alias  and  pluries  executions  regularly  from  term  to  term 
without  intermission,  but  not  otherwise.  Hadley  v.  Nash, 
69  N.  0.  R.  102. 

21.  The  United  States  Government  has  an  undoubted 
right  to  priority  of  payment  is  case  of  a  general  conveyance 
of  his  property^by  an  insolvent,  but  that  right  is  subject  to  a 
prior  lien,  and  if  a  lieu  be  acquired  by  a  docket  judgment  it 
will  not  be  defeated  by  a  subsequent  assignment,  unless  the 
insolvent  be  thrown  into  bankruptcy  by  proceedings  com- 
menced within  four  months  thereafter.  Hoppock  v.  Shober, 
09  K  0.  R.  153. 

22.  The  lien  on  land  acquired  by  a  docketed  judgment 
shall  not  be  lost  in  favor  of  a  judgment  subsequently  dock- 
eted, unless  the  plaintiff  in  the  latter  take  out  execution  and 
give  the  plaintiff  in  the  former  twenty  days  notice  before  the 
day  of  sale  by  the  sheriff,  and  the  plaintiff  so  notified  shall 
fail  to  take  out  execution  and  put  it  into  the  sheriff's  hands 
before  the  day  of  sale  Rule  19 — 63  1ST.  0.  009.  Dorherly 
v.  Logan,  70  N.  0.  R.  558. 

Vxl.    IN  WHAT  SOLVABLE. 

Judgments  given  now  are  solvable  in  Treasury  [Notes  of 
the  United  States.     Mitchell  v.  Henderson,  63  jS".  0.  R.  643. 
See  (Scale  of  Depreciation,  10,  27,  28.) 

V  II.     SATISFACTION  OF  JUDGMENTS. 

1.  A  proceeding  by  a  motion  supported  by  affidavits  after 
a  notice  to  the  opposite  party,  to  have  satisfaction  of  a  judg- 
ment entered  of  record  upon  the  ground  that  it  has  been 
paid  since  its  rendition,  is  the  appropriate  remedy  in  such  a- 
case,  but  is  neither  a  special  proceeding  nor  a  civil  action. 
It  is  only  a  motion  in  a  cause  still  pending.  Foreman  v. 
Mbb,  05  N.  C.  R  128. 

2.  Whenever  it  is  sought  to  establish  an  authority  in  a 


JUDGMENTS— YIIL— IX.  279 

clerk,  to  bind  a  plaintiff  by  the  receipt  of  depreciated  cur- 
rency in  payment  of  a  judgment,  it  must  be  shown  either 
that  the  receipt  was  expressly  authorized  by  the  plaintiff,  or, 
that  the  plaintiff  has  done  acts  from  which  such  an  author- 
ity may  fairly  be  implied.  Purvis  v.  Jackson,  69  N.  0.  E. 
474 

3.  Acts  from  which  such  an  agency  in  the  clerk  beyond 
what  the  law  (Itev.  Code,  chap.  31,  sec.  127,)  gives  him,  may 
be  implied,  must  be  such  as  under  the  circumstances  were 
reasonably  calculated  to  iuduce  the  debtor  to  believe  that 
the  clerk  was  the  creditor's  agent  for  the  purpose ;  as,  for 
instance,  that  the  creditor  had  procured  an  order  to  collect 
the  money ;  or  had  issued  an  execution  without  instructing 
the  sheriff  what  kind  of  money  he  was  to  receive  in  pay- 
ment, &c.  And  if,  from  such  acts,  the  debtor  has  been 
reasonably  led  to  believe  that  the  clerk  was  authorized  to 
receive  payment  of  a  judgment  in  Confederate  money,  and 
acting  on  that  belief,  pays  the  judgment  in  such  money,  it  is 
immaterial  whether  the  clerk  was  really  the  agent  or  not ; 
the  creditor  being  estopped  from  denying  the  agency,  and 
the  debtor  protected  in  his  payment.     Ibid. 

4.  Where  the  plaintiff,  before  the  war,  obtained  a  judg- 
ment against  an  administrator,  but  issued  no  execution  there- 
on and  demanded  no  payment  thereof,  either  before  or  during 
the  war,  and  upon  the  defendant's  voluntarily  paying  the 
amount  of  the  judgment  into  the  clerk's  office  in  1803,  the 
plaintiff  as  soon  as  he  heard  thereof  at  once  repudiated  such 
payment :  held,  that  notwithstanding  prudent  business  men 
in  the  same  community  and  at  the  time  were  receiving  Con- 
federate money  in  payment  of  debts,  still  the  plaintiff  might 
disregard  such  payment  by  the  defendant  altogether,  and 
recover  the  whole  amount  of  the  original  judgment.     Ibid. 

See  (Confederate  Money  13.) 

IX.     OF  TEK  EFFECT  OF  A  JUDGMENT. 

1.  A  judgment  rendered  against  a  certificated  bankrupt, 
merely  to  ascertain  the  amount  of  his  indebtness  to  the  plain- 
tiff, is  not  such  a  judgment  as  will  make  the  sureties  of  said 
bankrupt  liable  therefor  on  an  appeal  bond.  Fontaine  v. 
Wmibrooks,  65  N  C.  R.  528. 

2.  It  is  well  settled  that  a  judgment  rendered  according 
to  the  course  of  the  Court,  cannot  be  collaterally  impeached; 
and  judgments  of  Justice's  Court,  regularly  docketed  upon 
the  judgment  docket  of  the  Superior  Court,  form  no  excep- 


280  JUDGMENTS— IX.— X. 

tion  to  the  principle  above  stated.     Beid  v.  Spoon,  66  X.  0* 
E.  415. 

3.  Where  a  suit  was  brought  in  the  name  of  A  B,  Guar- 
dian, vs.  C  D,  and  was  stated  on  the  docket  in  the  name  of  A. 
B,  Gua.,  sometimes  in  the  name  of  A  B,  and  sometimes  A  B, 
Ex'r  or  Adrn'r,  and  after  the  death  of  plaintiff  was  suggested 
and  his  personal  representative  was  made  a  party  it  continued 
on  the  docket  in  the  same  name,  until  judgment  was  render- 
ed, which  was  in  favor  of  the  plaintiff  for  debt  and  costs:  held>. 
that  though  the  clerk  as  a  mere  index  or  memorandum,  con- 
tinued to  state  the  case  on  the  docket  as  it  had  stood  before, 
yet  as  it  was  the  same  case,  it  was  a  judgment  in  favor  of  the 
persona]  representative.     Gills  v.  Fuller,  GO  X.  0.  E.  110. 

4.  When  a  plaintiff  in  his  complaint  purports  to  set  out  a 
judgment  between  certain  parties,  and  defendant  pleads  mil 
tiel  record,  and  it  appears  from  an  examination  of  the  record, 
with  reasonable  certainty,  that  the  judgment  and  record  are 
the  same,  held  to  be  sufficient.     Ibid. 

5.  The  Supreme  Court  cannot  reverse  the  finding  of  a 
Judge  below,  upon  the  facts,  yet  they  have  a  right  to  reverse 
his  rulings  upou  the  legal  effect  and  operation  of  a  record. 
Ibid. 

6.  After  judgment,  the  statutes  of  amendment  cure  de- 
fects arising  from  "  mistake  in  the  name  of  any  party  or  per- 
son, or  for  any  informality  in  entering  judgment,  or  in  mak- 
ing up  a  record,"  Eev.  Code,  ch.  3;  and  "no  variance  be- 
tween allegation  and  proof  shall  be  material,  unless  it  has 
misled."     C.  0.  P.,  sec.  128.     Ibid, 

7.  The  addition  of  the  word  "executors,"  in  a  judgment 
confessed  b}^  a  defendant  is  mere  surplusage,  and  does  not 
prevent  his  being  charged  de  bonis  propriis  with  the  amount.. 
Hall  v.  Craicje,  OS  X.  C.  E.  305. 

X.     OF  PROVING  OR  ENFORCING  JUDGMENT. 

1.  In  an  action  upon  a,  former  judgment,  the  record  of 
the  judgment  is  the  proper  evidence  thereof;  and  its  pro- 
duction cannot  be  dispensed  with,  or  supplied  by  any  other 
evidence.      Walton  v.  McKesson,  04  X.  0.  E.  77. 

2.  Where  the  record  of  a  judgment  has  been  destroyed, 
the  first  step  towards  obtaining  a  remedy,  is  by  proceeding 
in  the  court  where  it  was  given,  to  the  end  that  the  record 
may  be  supplied.     Ibid. 

3.  The  proper  method  of  enforcing  a  judgment  nisi,  is 
by  action,  or  special  proceeding  commenced  by  summons  ; 


JUDGMENTS— X—  XL  281 

aud  this  rule  is  not  affected  in  ca^es  of  sheriffs,  by  sec.  263 
of  0.  0.  P.  (Bat.  Eev.  0.  17,  s.  263.)  Thompson  v.  Berry, 
64  X.  0.  R.  77. 

4.  A  judgment  by  default,  in  an  action  for  goods  sold  and 
delivered,  operates  as  an  admission  by  the  defendant  of  a 
cause  of  action,  and  that  the  plaintiff  is  entitled  to  nominal 
damages  ;  but  it  does  not  relieve  the  plaintiff  from  the  neces- 
sity of  proving  the  delivery  of  the  things  alleged  to  have 
been  sold  and  delivered,  and  their  value.  Smith  v.  Galling, 
64  X.  0.  R.  291. 

5.  Therefore,  in  such  case  the  defendant  may  prove  that 
such  things  never  were  delivered.     Ibid. 

6.  A  judgment  by  default  for  want  of  an  answer,  admits 
that  the  plaintiff  has  a  good  cause  of  action,  and  that  he  is 
entitled  to  some  damages.  Parker  v.  House,  66  X.  0.  R.  374. 

7.  In  such  case,  if  the  plaintiff's  claim  for  damages  is 
certain  or  can  be  rendered  certain,  by  mere  computation, 
there  is  no  need  of  proof,  as  the  judgment  by  default  ad- 
mits the  claim — but  when  the  measure  of  damages  is  uncer- 
tain, the  assessment  must  be  made  upon  proof — and  the  onus 
as  to  the  amount  is  upon  the  plaintiff.     Ibid. 

8.  Therefore,  where  there  was  a  judgment  by  default,  in 
a  suit  on  a  constable's  bond,  the  plaintiff  must  prove  that 
the  debtors  were  solvent,  and  the  amount  of  damage  sus- 
tained by  the  constable's  not  using  proper  diligence  in  col- 
lecting the  claims  placed  in  his  hands.     Ibid. 

XL     OF  DORMANT,  IRREGULAR,  VOID  AND  ERRONEOUS  JUDGMENTS. 

1.  An  entry  by  a  clerk  upon  the  Execution  Docket  in 
pursuance  of  a  letter  from  the  plaintiff's  counsel,  that  no  ex- 
ecution was  to  issue  until  ordered  by  the  counsel,  has  no 
effect  in  preventing  the  judgment  from  becoming  dormant. 
Neely  v.  Craige,  Phil.  L.  R.  187. 

2  The  acts  of  February,  1863,  ch.  34,  and  of  1866  ch.  50, 
suspending  the  Statute  of  Limitations,  do  not  prevent  judg- 
ments from  becoming  dormant.     Ibid- 

3.  A  judgment  is  not  void  because  no  complaint  has  been 
filed.     Leach  v.  W.  N.  C.  R.  B.  Co  ,  65  X.  0.  R  486. 

4.  If  a  complaint  is  founded  upon  an  assumpsit  for  goods 
sold,  a  final  judgment  without  proof  of  value,  &c,  as  upon  a 
default,  is  erroneous.     Oates  v.  Gray,  6(J  X.  C.  R.  442. 

5.  In  such  cases  the  clerk  must  ascertain  the  amount  due 
in  the  mode  prescribed  by  sec.  217,  0  0.  P.     Ibid. 

6.  The  entry  on  the  docket  was  sufficient  notice  of  appear- 


282  JUDGMENTS— XI.— XII. 

ance  to  entitle  the  defendant  to  the  five  days  notice  under 
the  statute.     1  bid. 

7.  Judgments  void  or  irregular  by  reason  of  some  infor- 
mality, will  be  set  aside  only  at  the  instance  of  a  party  to  the 
action  who  is  prejudiced  by  it.  Hervy  v.  Edmunds,  OS 
K  0.  E.  243. 

8.  Judgments  void  for  want  of  jurisdiction  in  the  court, 
if  such  appears  on  the  record,  may  be  collaterally  impeached 
in  any  court  in  which  the  question  arises.  Such  judgments 
may  be  avoided  and  striken  from  the  record  by  the  court,  ex 
mero  motu,  or  at  the  instance  of  any  person  interested  in 
having  it  done.     Ibid. 

9.  A  Judge  ot  the  Superior  Court  has  a  right,  with  con- 
sent of  parties,  to  sign  a  judgment  in  vacation  out  of  court, 
and  to  oider  the  same  to  be  entered  of  record  at  the  ensuing 
term.     Ibid. 

10.  Sees  315  and  325  of  the  Code  of  Civil  Procedure,  are 
still  in  force,  notwithstanding  the  acts  of  1808-69,  chap.  66, 
suspending  the  Code  in  certain  cases.     Ibid. 

1  1.  An  irregular  judgment  may  be  set  aside  at  any  time, 
and  an  injured  party  is  not  confined  to  a  year  after  he  has 
notice  of  it  A  motion  to  vacate  such  judgment  is  the  proper 
course  to  pursue,  giving  the  opposing  party  notice  of  such 
motion.     Cowles  v.  Cooper,  69  N.  C  It.  406. 

XII.     OF  VACATING  JUDGMENTS. 

1.  An  entry  upon  the  trial  docket  of  the  word  ''judg't," 
made  in  the  Superior  Court,  in  open  court,  and  in  accordance 
with  its  regular  rules  and  practice,  is  an  entry  of  a  regular 
judgment,  and  cannot  be  vacated  at  a  subsequent  term  of 
the"  Court.     Davis  v.  Shober,  Phil.  L.  R.  18. 

2.  Distinctions  between  judgments,  and  entries  thereof 
upon  the  records,  stated  by  lieade,  J.     1  bid. 

3  A  writ  in  debt  had  been  returned  to  Fall  Term,  1863, 
and  counsel  marked  his  name  for  the  defendants,  but  entered 
no  plea ;  at  Fall  Term,  1804,  without  the  knowledge  of  the 
defendants,  except  M.,  (who  was  one  of  two  administrators 
of  the  surety  to  the  debt.)  and  without  the  knowledge  of 
their  counsel,  the  counsel  for  the  plaintiff  signed  "  Judgment 
by  default  final  for,"  &c;  at  the  next  term  (Spring  I860,) 
the  plaintiff's  counsel  agreed  that  the  judgment  might  be 
stricken  out  as  to  all  of  the  defendants  excepting  the  ad- 
ministrators:  held,  that  there  was  no  error  in  the  refusal  of 
the  judge  below  to  strike  out  the  judgment  as  to  such  ad- 
ministrators.    Sharpe  wRintels,  Phil.  L.  K.  34. 


JUDGMENTS— XII.  283 

4.  In  an  action  sounding  in  damages,  for  an  unliquidated 
money  demand,  a  judgment  by  default  final  is  irregular,  and 
on  motion  will  be  set  aside.  Moore  v.  Mitchell,  Phil.  L.  B. 
304. 

5.  Tbe  judgment  to  be  entered  by  default  against  a  part 
of  numerous  defendants,  others  of  whom  plead  or  are  not 
taken,  is,  according  to  the  course  of  the  Court,  only  inter- 
locutory ;  therefore, 

0.  Where  a  writ  (in  assumpsit  upon  a  note)  against 
seven,  was  returned  to  Spring  Term  1807,  executed  upon 
five;  and  at  the  return  term,  three  of  those  taken  entered 
pleas:  a  judgment  final  by  default  was  taken  against  the 
other  two,  and  at  the  same  time  an  alias  writ  was  ordered 
against  those  not  taken  :  held,  upon  application  by  the  par- 
ties against  whom  judgment  had  been  taken,  made  at  Spring 
Term  1808,  that  such  judgment  was  irregular;  and  should 
have  been  set  aside  so  far  as  it  was  final,  and  allowed  to 
stand  as  an  interlocutory  judgment.  Dick  v.  McLaurin, 
63  X.  O.K.  185. 

7.  In  a  case  in  which,  at  Fall  Term  1803,  an  entry  of 
"judgment"  was  made  which  was  brought  forward  to  Fall 
Term  1804,  and  no  courts  being  held  iu  the  comity  during 
1805,  on  the  8th  of  March,  1866,  (out  of  term  time)  the 
notes  declared  on  were  handed  to  the  clerk,  who  thereupon 
extended  his  memorandum  above  into  a  formal  judgment  as 
of  Fall  Term  1804:  held,  that  such  judgment  was  not  irreg- 
ular.    Jacobs  v.Burgwyn,  03  N.  C.  11.  11)3. 

8.  That  the  execution  which  issued  thereupon  on  the  8th 
of  March,  18(10,  was  irregular,  as  being  issued  upon  a  dormant 
judgment,  and  therefore  might  be  set  aside,  on  motion  by  the 
defendants,     Ibid. 

!>.  The  assignee  of  a  defendant  has  no  right  to  have  two 
judgments  against  such  defendant  set  aside  on  the.  ground 
that  they  were  taken  upon  the  same  specialty.  Jacobs  v. 
£   Burgwyn,  03  N.  C.  B.  196. 

10.  Xo  one  but  the  defendant  in  an  execution  can  com- 
plain oi  a  judgment  for  being  ii  regular.     Ibid. 

11.  The  judgments  mentioned  above  are  not  irregular. 
Creditors  complaining  of  them  cannot  be  relieved  by  motion 
t<>  s«4  them  aside.     Ibid. 

12.  A  Court  after  allowing  an  irregular  judgment  by  de- 
fault final,  taken  at  a  previous  term,  to  be  amended  into  a 
judgment  by  default  and  enquiry,  Juts  power  at  the  same  term 
to  strike  out  such  judgment  altogether,  and  permit  the  de- 
fendant to  plead ;  therefore,  n<>  appeal  lies  to  the  Supreme 

■Court  from  such  action.     Dick  v.  Viclison,  03  X.  C.  E.  418. 


284  JUDGMENTS— XIL 

13.  Judgments  can  be  arrested  only  for  some  matter 
which  appears,  or  for  the  omission  of  some  matter  which 
ought  to  appear,  upon  the  record.  State  v.  Douglas,  63  N. 
0.  E.500. 

14  A  regular  final  judgment  cannot  be  set  aside  at  a  sub- 
sequent term,  on  motion,  even  although  it  was  entered  under 
a  misapprehension  of  counsel.  Murphy  v.  Merritt,  03  N.  G. 
E.  502. 

15.  An  appeal  from  an  order  to  vacate  a  judgment,  leaves 
such  judgment,  and  any  execution  issued  under  it,  in  full 
force.     Ibid. 

1G.  Where  a  judgment  by  default  has  been  taken  against 
a  principal  and  his  surety,  the  fact  that  no  process  in  the  suit 
had  been  served  upon  the  former,  affords  no  ground  for  vaca- 
ting such  judgment  as  against  the  latter.  Mason  v.  Miles, 
63  JST.  0.  K.  564. 

17.  Under  the  practice  in  this  State,  by  analogy  to  the 
old,  relief  against  a  judgment,  sought  because  the  defendant 
had  not  been  served  with  process  in  the  case,  is  not  to  be  made 
the  subject  of  a  quasi  equitable  proceeding,  but  must  be  ap- 
plied for  by  a  motion  incidental  to  the  judgment  impeached. 
Ibid. 

18.  The  Superior  Courts  have  power  to  vacate  judgments 
improperly  or  irregularly  taken  in  the  former  Superior  or 
County  Court.     Ibid. 

19.  Failure  to  attend  a  term  of  court  because  the  party 
knew  nothing  personally  about  the  cause  of  action,  and  ex- 
pected that  a  witness  who  had  been  duly  summoned  would 
attend, — "is  not  excusable  neglect"  (0.  C.  P.  s.  133)  so  as 
to  justify  a  Judge  at  a  subsequent  term  in  setting  aside  a 
judgment  rendered  against  such  a  party  in  the  absence  of 
such  witness.     Waddell  v.  Wood,  64  N.  0.  R  624. 

20.  Semble,  that  the  defendant  had  no  right  to  appeal 
from  the  order  of  the  Judge  refusing  to  set  aside  the  judg- 
ment.    Ibid. 

21.  Where  a  judgment  was  rendered,  upon  an  attach- 
ment, in  August  1866, — the  defendant  had  notice  thereof  in 
November  1866,  and  application  was  made  by  him  in  March 
1869  to  vacate  it,  on  the  grounds:  that  he  had  had  at  the 
time  it  was  rendered,  no  notice  of  the  action  in  the  came  in 
which  it  was  rendered,  that  he  was  an  infant  when  the  note 
was  given,  and  had  had  no  opportunity  of  pleading  it:  Held, 
that,  in  any  view,  his  laches  after  November  1866,  would  de- 
feat the  application.     Howell  v.  Barnes,  G4  N.  G  R.  626. 

22.  A  motion  to  amend,  or  to  vacate,  a  judgment,  can- 


JUDGMENTS— XII.  285 

not  be  entertained  by  the  court  of  the  county  to  which  such 
judgment  has  been  transferred,  and  where  it  has  been  dock- 
eted. It  should  have  been  made  in  the  county  where  the 
judgment  was  rendered.  Martin  v.  Deep  River  Co.,  64  N.  0. 
R.  633. 

23.  If  a  writ  of  capias  ad  respondendum  (under  the  former 
system)  were  not  returned  for  two  terms,  it  lost  its  vitality  : 
therefore,  where  such  writ  was  executed  returnable  to  Spring 
Term",  1804,  of  Johnston  Superior  Court,  and  no  such  court 
sat  then,  or  at  Fall  Term  :  Held,  that  a  judgment  by  default 
taken  in  such  suit  at  Spring  Term  1807,  was  irregular. 
Williams  v.  Rockwell,  64  N.  0.  R.  325. 

24.  A  judgment  by  default  final  upon  a  note  payable  in 
Confederate  money,  is  irregular.     Ibid. 

25.  The  proper  remedy  for  the  defendant  in  such  case,  is 
by  a  motion  in  the  cause.     Ibid. 

20.  A  court  cannot  order  satisfaction  of  a  judgment  to 
be  entered  because  of  some  matter  accruing  before  such  judg- 
ment was  rendered.     Jarman  v.  Saunders,  04  N.  0.  R.  367. 

27.  Where  the  Plaintiff  stated  that  the  defendant  had 
formerly  sued  him  and  that  after  such  action  was  brought, 
an  accord  and  satisfaction  had  taken  place  between  them, 
and  that,  upon  that  account,  and  relying  upon  the  implied 
promise  of  the  defendant  not  to  prosecute  such  suit,  he  had 
neglected  to  plead  therein ;  that  the  defendant  had  thereupon 
taken  judgment  against  him,  and  was  pressing  execution, 
&c. :  held,  that  the  plaintiff  was  entitled  to  relief,  by  an 
order,  that  upon  his  filing  at  its  next  term,  in  the  court  where 
this  suit  had  pended,  a  bond,  with  approved  security,  suffi- 
cient to  cover  the  debt,  &c,  the  defendant  should  withdraw 
his  execution,  the  judgment  vacated,  and  the  plaintiff  be 
allowed  to  plead:  all  costs  of  the  present  application  to  follow 
the  result  of  such  new  trial.     Ibid. 

28.  An  application,  although  by  summons  and  complaint, 
treated  as  a  motion  in  the  original  cause.     Ibid. 

20.  Where  a  complaint  demanded  judgment  that  a  pre- 
vious judgment  obtained  by  the  defendant  against  the  plain- 
tiff should  be  set  aside,  on  the  ground  that  it  had  been  en- 
tered upon  an  understanding  that  certain  deductions  should 
lie  allowed,  which,  subsequently,  the  plaintiff  therein  had 
refused  to  allow:  and  the  answer  took  issue  upon  these  all*  - 
gationsj  held,  that  until  the  issue  made  between  the  partus 
had  been  decided,  the  case  was  in  no  situation  to  warrant 
the  Judge  in  setting  aside  the  previous  judgment.  Atkinson 
v.  Cox,  64  X.  0.  R.  576. 


286  JUDGMENTS— XII. 

30.  The  0.  0.  P.,  sec.  133;  makes  it  discretionary  with  a 
Judge  whether  he  will  relieve  a  party  against  a  judgment  taken 
against  him  through  his  "  inadvertance,  mistake,  surprise  or 
excusable  neglect."  If  a  Judge  refuses  to  entertain  a  motion 
to  set  aside  a  judgment  for  any  of  the  enumerated  causes, 
because  he  thinks  he  has  no  power  to  grant  it,  then  there  is 
error,  and  he  has  failed  to  exercise  the  discretion  conferred  on 
on  him  by  law.     Hodgins  v.  White,  (55  N.  0.  R  393. 

31.  After  hearing  the  evidence  and  finding  the  tacts  under 
the  above  recited  section  of  the  0.  0.  P.,  the  action  of  the 
Judge  is  conclusive  upon  the  parties,  from  which  there  is  no 
appeal.     Ibid. 

32.  This  discretion,  however,  is  not  arbitrary,  but  im- 
plies a  legal  discretion.  As  for  instance,  if  the  Judge  mis- 
take the  meaning  of  the  statute  as  to  what  is  "  mistake,  inad- 
vertence, surprise  or  excusable  neglect."  In  such  a  case  his 
judgment  is  the  subject  of  appeal  and  review.     Ibid. 

33.  Where  a  final  judgment  is  rendered  in  an  action  after 
the  death  of  one  of  the  defendants,  it  will  be  vacated  upon 
motion,  as  it  is  "  error  in  fact"  to  take  judgment  against  one 
who  is  dead.  The  death  of  the  defendant  may  be  suggested, 
and  the  action  proceed  against  ihe  surviving  defendant ;  and 
it  is  the  business  of  the  plaintiff  to  make  such  suggestion, 
but  the  judgment  being  joint,  the  objection  may  be  taken 
by  the  surviving  defendant.  Burke  v.  Stohely,  05  N.  0.  R. 
569. 

34.  The  judge,  and  not  the  clerk  of  the  Court,  has  juris- 
diction under  the  0.  0.  P.,  sec.  133,  to  relieve  upon  motion 
a  party  from  a  judgment  taken  against  him  through  his  mis- 
take, inadvertence,  surprise  or  excusable  negligence.  Griel 
v.  Vernon,  Go  N.  0.  R   76. 

35.  A  judgment  taken  by  default  for  want  of  a  plea  is' a 
surprise  upon  a  party  under  the  0.  0.  P.,  sec.  133,  when  he 
has  employed  an  attorney  to  enter  his  pleas,  and  such  attor- 
ney has  neglected  to  do  so;  and  the  neglect  of  the  client  to 
examine  the  records  to  see  whether  his  pleas  have  been_en- 
tered  is  an  excusable  one.     Ibid. 

36.  The  finding  by  the  Judge  of  the  Superior  Court  of 
the  facts  which,  under  the  C.  C.  P  ,  sec.  133,  are  alleged  to 
constitute  surprise  and  negligence,  is  conclusive,  and  cannot 
be  appealed  from  ;  but  whether  such  facts,  when  found  con- 
stitute surprise  or  excusable  negligence  is  a  question  of  law, 
and  from  the  decision  of  the  Judge  upon  it  an  appeal  may 
be  taken.     1  bid. 

37.  Where  an  attorney  was  written  to  by  the  defendant 


JUDGMENTS— XII.  237 

to  appear  in  a  cause  then  returnable  to  a  term  of  his  court 
in  1861,  and  he  tailed  to  make  an  appearance  thereto,  when 
a  judgment  by  default  and  enquiry  was  obtained  in  1863: 
held,  that  it  did  not  make  out  such  a  case  of  ''mistake,  in- 
advertence, surprise  or  excusable  negligence,"  as  to  justify 
the  court  in  setting  aside  said  judgment.  Burke  v.  Stokely, 
63  X.  0.  K,  569. 

38.  On  a  motion  made  to  vacate  a  judgment  under  the 
133d  section  0.  0.  P.,  it  it  is  the  duty  of  the  Judge  to  find 
and  state  the  facts,  in  order  that  his  decision  thereon  may 
be  revised  by  this  Court.     Pmvell  v.  Weith,  W  N.  0.  R.  423. 

39.  In  such  case,  where  one  of  the  grounds  was,  that  the 
action  (which  was  commenced  under  the  old  system)  had  not 
been  transferred  in  due  time,  a  statement  of  the  Judge  that 
"  the  action  was  transferred  within  the  time  prescribed  by 
law,"  is  not  a  sufficient  finding  of  the  facts,  but  he  should 
have  stated  when  the  suit  was  transferred.     Ibid. 

40.  Before  this  court  can  vacate  a  j udgment  on  the  ground 
of  excusable  neglect,  under  C.  C.  P.,  sec.  133,  it  is  the  duty 
of  the  Judge  of  the  Superior  Court  to  find  the  facts  as  they 
should  be  set  out  in  a  special  verdict.  Clegy  v.  N.  Y.  W.  S. 
L.  Co,  66  ET.  C.  E.  391. 

41.  In  cases  arising  under  the  new  system,  issues  of  fact 
cannot  be  heard  before  this  court,  and  it  can  only  review  the 
law  which  His  Honor  below  applies  to  the  facts  as  found  by 
him.     Ibid. 

42.  Where  a  judgment  was  obtained  before  a  justice  of 
the  peace,  and  docketed  in  the  office  of  the  Superior  Court 
Clerk,  the  court  has  no  power,  upon  motion,  to  set  aside  such 
judgment  and  enter  the  cause  upon  the  civil  issue  docket. 
Ledbetter  v.  Osborne,  66  N.  C.  R.  379. 

43.  Where  a  judgment  was  obtained  in  a  court  of  law,  and 
an  injunction  was  afterwards  issued  to  restrain  the  collection 
of  it,  which  injunction  was  dissolved  and  judgment  entered 
upon  the  injunction  bond  :  held,  that  a  motion  to  vacate  the 
late  judgment,  upon  the  allegation  that  the  originalone  had 
been  satisfied  bv  payment  to  the  sheriff,  could  not  be  enter- 
tained.    Council  v.  Willis,  66  N.  C.  R.  359. 

44.  If  such  payment  had  been  made,  the  regular  and  pro- 
p  i  course  would  have  been  to  plead  the  same,  or  have  satis- 
faction entered  upon  the  record,  and  not  offer  proof  of  pay- 
ment upon  a  motion  to  vacate  a  regular  judgment     Ibid, 

45.  Under  0.  C.  P.,  sec.  133,  a  Judge  may  in  his  discre- 
tion, and  upon  such  terms  as  may  be  just,  at  any  time  within 
a  year  after  notice,  relieve  a  party  from  a  judgment  order, 


288  JUDGMENTS— XII. 

or  other  proceedings  taken  against  him,  by  mistake,  inadver- 
tence, surprise,  or  other  excusable  neglect.  Watson  v.  Sholdsy 
67  N.  C.  E.  235. 

46.  Under  the  new  Constitution,  application  to  a  Judge 
is  the  more  appropriate  remedy,  as  he  finds  the  facts,  and 
the  Supreme  Court  only  reviews  his  legal  conclusion ;  whereas, 
in  applications  for  certiorari  the  court  must  find  the  facts. 
And  although  it  may  not  come  without  the  prohibition  that 
the  ''  Supreme  Court  shall  not  try  issues  of  facts,"  yet  the 
court  prefers  not  to  try  "  questions  ot  fact,"  as  contradistin- 
guished from  "issues  of  fact,"  when  it  can  be  avoided. 
Ibid, 

47.  When  a  defendant  moved  to  vacate  a  judgment,  upon 
the  ground  of  excusable  neglect,  and  the  excuse  assigned  was 
that  his  counsel  by  mistake,  had  misinformed  him  as  to  the 
time  of  holding  the  court,  whereby  he  failed  to  file  an  answer: 
held,  that  the  excuse  for  not  filing  the  answer  was  not  suffi- 
cient, when  the  facts  show,  that  the  defendant  did  not  suffer 
harm  by  mistake  of  his  counsel.  Clegg  v.  White  Soapstone 
Co.,  67  N.  C.  E.  302. 

48.  When  the  court  below  refused  a  party  permission  to 
file  an  answer,  at  a  term  subsequent  to  the  time  allowed  by  a 
former  order,  the  appellate  court  must  assume  that  the  ques- 
tion of  "excusable  neglect  "  was  passed  upon.  If  the  party 
was  dissatisfied  with  the  ruling,  he  had  a  light  to  appeal, 
and  it  was  his  duty  to  do  so,  for  a  motion  to  be  vacated  is 
not  a  substitute  for  an  appeal,  but  a  relief  against  accidents. 
Ibid. 

49.  The  Code  of  Civil  Procedure,  sees.  132  and  133, 
wisely  clothes  the  Superior  Court  Judges  with  large  discre- 
tion as  to  amendments  in  furtherance  of  justice  and  relief  in 
cases  of  mistake :  therefore  held,  That  it  was  right  for  the 
Judge  below  to  set  aside  a  judgment  entered  up  after  the 
defendant  and  his  counsel  had  left  the  Court,  and  in  so  doing 
he  exercised  a  sound  discretion.  Deal  v.  Palmer,  68  N.  C. 
R.  215. 

50.  A  Judge  has  no  power  to  set  aside  a  judgment 
granted  by  a  Justice  of  the  Peace,  which  had  been  docketed 
in  the  Superior  Court  of  the  County  where  the  same  was  ob- 
tained. Much  less  has  a  Judge  of  another  judicial  district 
any  power  to  set  aside  or  interfere  with  a  similar  judgment, 
though  the  same  is  likewise  docketed  in  the  court  of  a  county 
within  his  district,  and  execution  issued  from  that  court. 
Birdsey  v.  Harris,  68  N".  0.  E.  92. 

51.  The   judgment  authorized  to  be  set  aside  by  the 


JUDGMENTS— Xir.  289 

Superior  Court  on  account  of  mistake,  inadvertence,  surprise, 
•or  excusable  neglect,  refers  to  judgments  rendered  at  a  pre- 
vious term,  and  does  not  relate  to  what  takes  place  at  the 
trial  term.     McOullock  v.  Doak,  08  N.  G.  E.  207. 

52  When  a  judgment  which  had  been  standing  for  sev- 
eral terms,  and  upon  which  an  execution  had  issued  and  the 
laud  of  defendant  sold,  had  been  set  aside  upon  the  motion 
of  the  defendant,  it  requires  no  notice  of  a  motion  on  the 
part  of  the  plaintifi  to  revoke  the  order  setting  the  judgment 
aside,  and  to  re-instate  the  same  and  the  execution  on  the 
docket.     Perry  v.  Pcarce,  08  X.  0.  E.  307. 

53.  Where  the  words  "judgment  according  to  report" 
were  entered  on  the  docket,  and  no  final  judgment  was 
drawn  up  and  sigued  by  the  Judge,  and  where  the  counsel 
for  the  party  in  whose  favor  such  judgment  was  rendered, 
declined  to  draw  up  any  final  judgment,  but  filed  exceptions 
to  the  report,  during  the  week  and  before  the  court  was  ad- 
journed, and  when  at  the  next  Term  of  the  court  the  Judge 
set  aside  the  "judgment  according  to  report,"  and  heard  the 
cause  on  the  exceptions  to  the  report:  held,  that  this  action 
was  within  the  discretion  of  his  Honor,  and  that  it  was  not 
arbitrarily  or  unlawfully  exercised.  Utley  v.  Younci,  08  X. 
C.  R.  387. 

54.  The  mistake,  inadvertence,  surprise,  or  excusable 
neglect,  stating  in  sec.  133,  C.  O.  P.,  as  a  ground  for  relieving 
a  party  from  a  judgment,  &c,  is  a  question  of  law,  and  if  the 
Judge  below  errs  in  his  ruling  in  regard  thereto,  this  court 
will  review  his  decision.     The  Judge  is  the  sole  finder  of  the 

facts  upon  which  application  for  such  relief  rests.     Powell  v 
Weith.  68  X.  O.  B.  342. 

bo.  When  an  appeal  is  taken  from  the  final  judgment  of 
the  Superior  to  the  Supreme  Gourt,  the  whole  case  is  taken 
up  to  the  latter  court,  and  if  the  judgment  be  affirmed,  re- 
mains there,  so  that  the  Judge  of  the  "Superior  Gourt  has  no 
power  to  set  aside  the  judgment  upon  the  ground  of  mistake, 
&c,  under  sec.  133,  G.  C.  P.  Isler  v.  Brown  et  al,  0!)  X.  C. 
E.  125. 

50.  When  judgment  has  been  obtained  in  an  attachment 
against  a  company,  upon  a  fraudulent  demand,  sued  by  a 
wrong  name,  and  having  no  notice  of  the  action,  such  judg- 
ment should  be  set  aside  and  the  company  allowed  to  plead, 
although  the  same  was  known  by  one  name  as  well  as  an- 
other. Deep  Paver  Copper  Co.  v.  Martin,  70  X.  0  E.  300. 
(See  Xotice  4 ) 
ID 


290  JUDGMENTS—  XIII  —JUDGES,  &c. 

XIII.     PETITION  TO  RE-HEAR  JUDGMENTS. 

1.  Upon  a  petition  to  rehear  a  judgment  in  this  Court  at 
a  former  term,  the  Court  will  not  reverse  or  vary  the  former 
judgment  unless  it  plainly  appears  that  injustice  was  thereby 
done  the  petitioner.     Johnson  v.  Hanner,  08  N\  C.  R.  516. 

2.  The  Supreme  Court  has  no  power  to  entertain  a  peti- 
tion to  rehear  a  criminal  action.  It  never  passes  judgment 
in  such  cases,  but  only  gives  its  opinion,  and  orders  it  to  be 
certified  to  the  Court  below,  to  be  carried  into  effect  by  that 
Court.     State  v.  Jones,  09  N.  C.  R  10. 

3.  A  party  plaintiff  has  no  right  to  have  a  decree  re-heard 
by  which  certain  lands  were  directed  to  be  sold,  (and  which 
afterwards  confirmed  the  sale,)  when  such  party  is  in  no  way 
interested  iu  the  proceeds  of  sale,  and  did  not  ask  a  sale  in 
her  original  complaint.     Hinton  v.  Hinton,  70  N\  C.  E.  730. 

4.  A  re-hearing  is  not  a  matter  of  right,  but  rests  in  the 
sound  discretion  of  the  Court,  where  the  parties  to  a  final 
judgment  fail  to  appeal  by  their  own  default.  Williams  v. 
Alexander,  70  55".  C.  R.  005. 

5.  In  a  petition  to  rehear,  it  should  appear  either  that 
there  is  error  of  law  apparent  on  the  record,  or  that  testimony 
has  been  newly  discovered  which  would  materially  vary  the 
case.  That  no  pleadings  have  been  filed  in  a  cause  before 
the  Probate  Court,  and  that  evidence  of  the  witnesses  was 
not  taken  by  question  and  answer,  and  signed,  are  no  such 
grounds  of  error  of  law  as  will  entitle  a  party  to  have  the 
cause  re-heard  after  final  judgment,  especially  when  it  ap- 
pears that  such  party  had  every  opportunity  for  a  full  de- 
fence, and  of  an  appeal.     Ibid. 


JUDGES  EXCHANGING   DISTRICTS. 

1.  Whenever  a  Judge  exchanges  Districts  with  another,, 
with  the  consent  of  the  Governor,  or  whenever  he  shall  be 
required  by  the  Governor  to  hold  a  specified  term  of  a  Supe- 
rior Court  out  of  his  proper  District,  the  authority  of  the 
Governor  should  be  of  record  in  every  county  in  which  he 
holds  a  term,  and  should  be  attached  to  the  record  of  every 
appeal  to  this  court.  Judges  who  exchange  Districts  by  the 
consent  of  the  Governor  for  a  whole  riding,  or  series  of  courts, 
take  the  place  of  each  other  for  all  purposes  during  that 
series  of  the  courts.     Bear  v.  Cohen,  05  N.  C.  R.  511. 


JUDGES,  &c— JUDGES  OF  SOTERIOR  COURT.  201 

2.  When  the  Governor  requires  a  Judge  to  hold  a  term 
of  a  court  (either  regular  or  special)  for  some  county  outside 
of  his  proper  District,  the  authority  of  the  Judge  is  special : 
the  jurisdiction  of  the  proper  Judge  of  the  District  is  super- 
seded by  that  of  the  substituted  Judge  in  that  county  during 
the  specified  term,  but  not  elsewhere,  nor  for  a  longer  time  ; 
the  substituted  Judge  has,  in  respect  to  all  cases  pending  in 
the  specified  county  dining  the  specified  term,  all  the  powers 
of  the  proper  Judge  of  the  District ;  he  still  retains  those 
belonging  to  him,  as  a  Judge  of  his  own  district.     Ibid 

3.  A  Judge  of  the  6th  Judicial  District  has  no  power  to 
vacate  an  order  for  claim  and  delivery  of  personal  property, 
issuing  out  of  a  Court  of  the  third  Judical  District,  unless  he 
has  been  legally  assigned  to  hold  the  court  of  the  county 
where  the  subject  matter  is  pending.  Myers  v.  Hamilton, 
65  X.  C.  R  5(17. 

4.  A  District  Court  Judge  is  not  authorized  to  dissolve 
injunctions,  or  to  punish  parties  for  a  contempt  iu  disobeying 
an  injunction  order,  except  in  his  own  District,  unless  he  has 
been  duly  assigued  to  hold  the  court  in  the  county  where  the 
original  process  is  returnable  Morris  v.  Whitehead,  <j5 
N.  0.  R.  637. 

5.  When  the  Judges  exchange  Circuits,  the  instant  one 
of  them  enters  the  district  the  courts  of  which  first  com- 
mence, at  the  same  instant  the  resident  Judge  of  such  district 
becomes  Judge  of  the  other,  and,  in  such  case  it  is  the  duty 
of  the  Judge  of  the  district  first  entered  to  repair  to  the  other 
district,  so  as  to  reach  it  at  the  same  time  his  own  is  reached 
by  the  other  Judge.     Hoives  v.  Manny,  06  X.  C.  R.  2 IS. 


JUDGES  OF  THE  SUPERIOR  COURT. 

A  Judge  of  the  Superior  Court,  holding  Courts  of  Oyer 
and  Terminer  under  commissions  from  the  Governor,  is  en- 
titled to  reasonable  and  just  compensation,  which,  being 
ascertained  upon  a  reference  to  the  Clerk,  the  Court  recom- 
mends the  General  Assemblv  to  allow.  Henry  v.  State  of 
N.  (I,  C8N.O.  R-  465. 


292 


JURISDICTION— I. 


JURISDICTION. 


I. 

Of   Justices  of    the  Peace  in 
civil  cases. 

V. 

II. 

Of   Justices  of   the   Peace  in 

VI. 

criminal  matters. 

VII. 

III. 

IV. 

Of  the  Clerk  and  Probate  Judge. 
Of  the  Superior  Court  in  term, 
or  of  the  Judge. 

VIII. 

Of   the    Superior    Court  in 

criminal  matters. 
Of  Courts  of  Equity. 
Of  the  Federal  Courts. 
Concurrent    jurisdiction    of 

courts. 


I.     OF  JUSTICES  IN  CIVIL  CASES. 


1.  The  jurisdiction  conferred  upon  Justices  of  the  Peace 
by  the  Constitution,  Art.  IV,  sec.  33,  extends  to  all  sums  of 
two  hundred  dollars  and  under,  exclusive  of  interest  Hedge- 
cock  v.  Davis,  64  K  C.  R.  650. 

2.  Where  questions  of  constitutional  construction  are 
doubtful,  Courts  will  defer  to  a  previous  decision  thereupon 
made  by  the  Legislature.     Ibid. 

3.  Proceedings  taken  before  a  Justice  of  the  Peace  to 
recover  the  possession  of  real  estate  where  tiie  title  comes 
in  question  are  not  absolute  nullities.  Dulin  v.  Howard,  66 
N.  C  R.  433. 

4.  The  defendant  may  so  treat  them,  but  it  does  not  fol- 
low that  the  plaintiff  who  initiated  and  took  the  benefit  of 
them  can.     Ibid. 

5.  When  one  is  deprived  of  his  land  under  color  of  judi- 
cial proceedings  heard  before  such  justice,  although  jurisdic- 
tion is  absolutely  withheld  from  such  justice,  on  general 
principles  the  Superior  Courts  on  appeal  have  a  right  to 
award  him  restitution.     Ibid. 

6.  Nor  was  the  Superior  Court  confined,  in  dispensing 
the  law  on  appeal,  to  mere  restitution,  but  could  also  have 
allowed,  had  it  been  applied  for,  an  inquiry  of  damages. 
Ibid. 

7.  Under  our  old  system  of  practice  and  procedure,  a 
Justice  of  the  Peace  had  a  right  to  grant  a  new  trial  when 
judgment  was  rendered  against  an  absent  party,  if  a  proper 
application  was  made  within  ten  days.  Rev.  Code,  chap.  62, 
sec.  15.  The  provisions  of  that  statute  have  not  been  ma- 
terially changed  under  the  new  system.  C.  C.  P.,  sec.  508 
Froneberger  v.  Lee,  66  1ST.  C.  R.  333. 

8.  When  both  parties  to  an  action  are  present  at  the 
trial  in  a  Justice's  Court,  and  the  case  is  heard  and  judg- 
ment rendered,  a  new  trial  cannot  be  allowed.     The  party 


JURISDICTION-!.— II.  293 

dissatisfied  must  appeal  to  the  Superior  Court,     C.  C.  P., 

sec.  528.     Ibid  .   n.    .  ". 

9.  A  Justice  of  the  Peace  has  no  jurisdiction  under  the 
Constitution,  art.  4,  sec.  15  and  33,  of  a  suit  on  a  constable's 
bond,  the  penalty  of  which  is  more  than  $200,  although  the 
dama'ges  to  be  assessed  are  less  than  that  sum,  and  the  Act  of 
lS09-'70,  chap.  109,  sec.  13,  cannot  be  allowed  the  effect  of 
conferring  such  jurisdiction.     Fell  v.  Porter,  G9  N.  C  R.  140. 

10.  It  seems  that  as  against  the  officer  alone  a  Justice  of  the 
Peace  has  jurisdiction  of  a  suit  for  a  sum  less  than  $200 
collected  by  the  plaintiff  and  not  paid  over.     Ibid. 

11.  A  party  has  a  right  to  "split  up  "  his  accounts  so  as 
to  include  a  certain  number  ot  items  under  one  warrant  and 
a  certain  number  under  another,  and  so  on,  so  as  to  bring 
the  several  warrants   under  the  jurisdiction  of  a  Justice  of 
the  Peace.     Caldwell  v.  Beatty,  09  N.  C.  R.  305. 

12.  The  question  whether  a  certain  account  is  over  the 
jurisdiction  of  a  Justice  of  the  Peace  is  a  question  of  law  to 
be  decided  by  the  Court,  the  amount  of  the  account  being  a 
question  of  fact  for  the  jury  to  decide.     Ibid. 

13.  The  finding  of  certain  facts  by  a  Justice  of  the  Peace, 
on  the  trial  of  an  action  in  which  the  recovery  is  tor  less  than 
$25,  is  final,  and  not  the  subject  of  review  by  the  Judge  of 
the  Superior  Court.     Cauble  v.  Boyden,  09  N.  C.  R.  434. 

14.  The  jurisdiction  of  a  Justice  of  the  Peace  when  neces- 
sary to  be  proven,  being  a  question  of  law,  cannot  be  proved 
by  witnesses  (if  properly  objected  to),  but  must  be  determin- 
ed by  the  Court.     Bridgets  v.  Bridgers,  09  N".  C.  R  434. 

15.  An  action  for  deceit  in  the  sale  of  a  mule — an  action 
ex  delicto  under  the  old  system — is  not  within  the  jurisdiction 
of  a  Justice  of  the  Peace,  as  provided  in  Art.  IV,  sec.  33,  of 
the  Constitution.     Bullinger  v.  Marshall,  70  N.  C.  It.  520. 

II.     JURISDICTION   OF  JUSTICES  IN  CRIMINAL  MATTERS. 

1.  The  act  of  18G8-'9,  c,  178,  sub-c  iv.,  giving  to  justices 
of  the  peace  power  to  hear  and  determine  criminal  actions 
for  certain  petty  offences,  and  among  them,  "  assaults,  and 
assaults  and  batteries,  where  no  deadly  weapon  was  used, 
and  no  serious  damage  was  done,  and  where  the  punishment 
imposed  by  law  <h>rs  not  exceed  fifty  dollars  fine,  or  one 
month's  imprisonment," — is  not  unconstitutional.  State  v. 
Johnson,  64  N.  0.  R  581. 

2.  As  that  act  confines  the  jurisdiction  of  the  justice  to 
such  offences  as  are  committed  within   his  township,  it  can- 


1294  JURISDICTION— II. 

not  be  exercised  in  counties  where  townships  have  not  been 
laid  off.     Ibid. 

3.  In  such  cases,  the  pleadings  must  show  affirmatively, 
everything  necessary  to  confer  the  jurisdiction  relied  upon 
therein.     Ibid. 

4.  Justices  of  the  Peace  have  not  exclusive  jurisdiction 
of  the  offence  of  receiving  stolen  goods  under  the  value  of 
Jive  dollars  ;  but  only  jurisdiction  concurrent,  under  certain 
circumstances,  with  that  of  the  Superior  Court.  State  v. 
Perry,  64  N.  C.  R.  598. 

5.  On  an  indictment  for  an  affray,  a  plea  of  autre  fois 
convict,  before  a  Justice  of  the  Peace,  "in  his  own  proper 
township,  and  that  no  deadly  weapon  was  used,  and  no  bodily 
injury  inflicted,"  is  insufficient,  when  the  complaint  does  not 
set  forth  that  the  offence  was  committed  in  the  township  of 
the  Justice,  or  that  the  complaint  was  made  by  the  party 
injured,  as  expressly  required  by  the  Act  of  1888-'9,  ch.  178, 
sub-ch.  4r  sees.  6  and  7.     State  v.  Davis,  65  N.  C.  R.  298. 

6.  A  Justice  of  the  Peace  may  have  final  jurisdiction  of 
that  kind  of  an  affray,  which  consists  of  the  lighting  by  con- 
sent of  two  or  more  persons  in  a  public  place,  but  not  of 
that  kind  which  is  committed  by  one  or  more  persons  making 
a  display  of  deadly  weapons  with  violent  or  threatening- 
words,  or  by  other  similar  means,  calculated  to  terrify  the 
people  In  the  latter  sort  of  cases,  as  no  one  in  particular 
is  injured,  there  is  no  injured  party  to  complain  to  the  Jus- 
tice, and  he  cannot  have  jurisdiction,  except  to  bind  over 
the  party  to  the  Superior  Court.     Ibid. 

7.  In  the  act  ot  1868-'9,  ch.  178,  sub-ch.  4,  sec  6,  the 
provision  "  that  the  complaint  shall  not  be  made  by  collusion 
with  the  accused,"  does  not  apply  to  the  case  of  a  misde- 
meanor, such  as  a  battery,  where  there  is  both  a  public 
wrong  and  a  private  injury,  and  the  party  injured  accepts 
from  the  aggressor  satisfaction  for  his  injury,  but  to  the  case 
where  the  complaint  is  not  made  bona  fide,  but  under  terror, 
or  is  induced  by  some  fraudulent  practice,  or  is  for  some 
fraudulent  end.  In  such  latter  case  the  Justice  should  de- 
cline the  final  jurisdiction,  and  bind  the  offender  over  to  tne 
Superior  Court.     Ibid. 

8.  A  warrant  issued  by  a  Justice  of  the  Peace  at  the  in- 
stance and  upon  the  oath  of  a  prosecutor,  may  be  taken  as 
the  complaint  of  such  prosecutor,  but  to  give  final  jurisdiction 
to  a  justice  of  the  offence  therein  charged,  it  must,  under  the 
Act  of  1868-'!),  eh.  178,  sub-ch.  4,  sec.  6,  allege  that  the  com- 
plaint is  not  made  by  collusion  with  the  accused,  and  without 


JURISDICTION— II— III.  295 

such  allegation,  a  conviction  under  it  will  not  sustain  the 
plea  of  autre  fois  convict.     State  v.  Hawes,   65  N.  0.  R.  301) 

9.  A  warrant  for  an  offence  within  the  jurisdiction  of  a 
Justice  of  the  Peace,  under  the  Act  of  1868-'9,  ch.  178,  sub- 
ch.  4,  sec.  6,  may  be  issued  by  a  Justice  who  does  not  reside 
in  the  township  where  the  offence  was  committed,  but  it  must 
be  returned  before,  and  tried  by  a  Justice  who  does  not  reside 
in  such  township.     Ibid. 

10.  Before  a  Justice  of  the  Peace  can  have  final  jurisdic- 
tion of  any  criminal  offence,  it  must  appear  in  the  complaint 
and  upon  proof  that  each  and  every  requisite  prescribed  in 
sub-ch.  4,  sec.  6,  of  chap.  178,  of  the  Act  of  18(59,  has  been 
strictly  pursued.     State  v.  Pendleton,  05  N.  C.  R.  617. 

11.  Observations  as  to  the  duty  of  Solicitors,  where  par- 
ties have  been  bona  fide  punished  before  the  Justice  of  the 
Peace.     1  bid. 

12.  The  jurisdiction  of  the  Justice  of  the  Peace  of  the 
complaint  upon  the  examination  whereof  the  alleged  perjury 
was  committed,  is  sufficiently  averred  where  it  is  in  this  case, 
that  the  2.  ustice  had  power  to  administer  the  oath.  State  v. 
Davis,  65  K  C.  R.  495. 

13.  The  Constitution,  Art.  IV,  sec.  33,  gives  Justices 
jurisdiction  of  criminal  matters  arising  in  their  counties  when 
the  punishment  cannot  exceed  a  fine  of  fifty  dollars,  or  impri- 
sonment for  one  month.  When  the  Legislature  removed  this 
limitation,  and  left  it  discretionary  with  the  Court  to  exceed 
hat  limit  it  took  away  the  jurisdiction  of  Justices  of  the  Peace 
over  the  offence.     State  v.  Heidllburg,  70  N.  O  R.  496. 

See  (Forcible  Entry  and  Detainer,  8.) 
[Note. — The  Act  of  1873-'4,  ch.  176,  adds  to  the  number 
of  offences  cognizable  by  Justices.] 

III.  OF  THE  CLERK  AND  PROBATE  JUDGE. 

1.  The  entry  of  a  dissent  by  the  widow,  is  an  incident  to 
the  jurisdiction  of  Probate,  and  as  this  jurisdiction  has  been 
conferred  niton  the  Clerk  of  the  Superior  Court,  the  widow's 
dissent  is  to  be  made  and  entered  in  his  office.  Ramsour  v. 
liamsour,  64  N.  C.  R.  231. 

2.  Clerks  of  the  Superior  Courts  have  original  jurisdiction 
of  all  proceedings  for  the  settlement  of  the  estates  of  deceased 
persons.     Hunt  v.  S)i<<-</,  64  N.  C.  R.  176. 

3.  That  jurisdiction  is  also  exclusive  whenever  adequate ; 
e.  e.  perhaps,  in  all  cases  except  where  a  provisional  remedy 
by  injunction  may  be  required  pending  the  proceedings  before 
the  Clerk.     Ibid. 


29G  JITEISDICTION— III. 

4.  Orders  for  an  injunction  in  such  cases  must  be  bad 
from  the  Judge,  and  must  be  modified  or  vacated  by  him  j 
but  applications  for  the  orders  must  be  made  by  motion  in 
original  proceedings,  and  returns  upon  the  Judge's  order, 
must  be  made  to  the  Clerk.     Ibid. 

5.  Therefore,  an  action  demanding  that  an  executrix,  who> 
was  alleged  to  be  wastiug  the  estate,  should  turn  it  over  to  a 
receiver,  that  the  plaintiff  should  be  paid  a  legacy,  &c ,  which 
had  been  brought  to  term  time,  was  dismissed.     Ibid. 

6.  The  Probate  Court  has  exclusive  original  jurisdiction 
of  special  proceedings  for  legacies  and  distributive  shares;  in 
such  cases,  if  the  construction  of  a  will  come  in  question,  or, 
should  exceptions  be  filed  to  the  account  as  stated  by  the 
Probate  Judge,  such  questions  and  exceptions,  and  all  other 
questions  of  law  will  be  sent  up  to  the  Judge;  from  whose 
decision,  an  appeal  may  be  taken.  Heileg  v.  Foard,  64 
K  C  E.  710. 

7.  The  jurisdiction  of  auditing  accounts  of  executors, 
administrators  and  guardians,  conferred  upon  the  Judge  of 
Probate  by  C.  C.  P,,  sees.  418  and  478,  is  an  ex  parte  juris- 
diction of  examining  the  accouuts  and  vouchers  of  such  per- 
sons, allowing  them  commissions,  &c,  as  formerly  practised; 
and  does  not  conclude  legatees,  &c,  or  affect  suits  inter  par- 
tes upon  the  same  matters ;  which  suits,  in  case  of  legatees 
and  distributees,  (unless  brought  upon  bonds  given  by  admin- 
istrators, are  by  special  proceedings  before  the  Probate  Court; 
and  in  case  of  wards,  or  if  upon  administration  bonds,  are  by 
civil  actions  brought  to  term.     Ibid. 

8.  Practice,  in  the  Probate  Courts,  in  taking  the  accounts 
of  executors,  guardians,  &c,  stated  in  detail,  and  the  dis- 
tinction between  issues  of  fact  and  questions  of  fact,  applied. 
Rowland  v.  Thompson,  04  N.  C  E.  714. 

9.  The  summons  in  special  proceedings  is  returnable  be- 
fore the  clerk.     Tate  v.  Lowe,  64  N.  C.  E.  G44. 

10.  Any  proceeding  that  under  the  old  mode  was  com- 
menced by  capias  ad  respondendum,  (including  ejectment,) — 
or  by  a  bill  in  equity  for  relief,  is  a  "  Civil  Action  ;"  any 
proceeding  that  under  the  old  mode  might  be  commenced  by 
petition,  or  motion  upon  notice  is  a  "  Special  Proceeding.1* 
Ibid. 

11.  Proceedings  for  Dower,  Partition  and  Year's  Allow- 
ance, are  Special  Proceedings.     Ibid 

12.  Proceedings  to  obtain  damages  for  injuries  to  land 
caused  by  the  erection  of  mills,  are  Special  Proceedings,  and 
the  summons  therein  should  be  returned  before  the  clerk- 
Sumner  v.  Miller,  G4  ST.  C  E.  688. 


JURISDICTION— III.  297 

13.  Jurisdiction  over  cases  seeking  from  administrators 
additional  securities  upon  their  bonds,  is  vested  in  the  Clerk 
of  the  Superior  Court,  in  his  character  as  Probate  Judge. 
Hunt  v.  Sneed,  64  K  C.  R.  180. 

14.  The  Judge  of  the  Court  of  Probate  has  jurisdiction 
of  a  complaint  by  a  ward  against  his  guardian,  demanding 
an  account  and  payment.  From  his  judgment  an  appeal 
will  lie  to  the  Judge  of  the  Superior  Court,  who  having  thus 
obtained  jurisdiction  of  the  cause  will  retain  it  until  it  is 
finally  disposed  of.     Rowland  v.  Thompson,  65  N".  C.  R.  110. 

15.  The  Judge  of  the  Court  of  Probate  has  no  jurisdic- 
tion of  a  suit  on  a  guardian  bond.  Such  suit  must  be 
bi ought  in  the  Superior  Court.     Ibid. 

16.  Where  a  suit  for  the  settlement  of  a  guardian  account 
is  before  the  Judge  of  Probate,  his  deputy  cannot  perform 
any  functions  in  taking  an  account,  but  only  such  as  are 
merely  ministerial,  such  as  recording  testimony,  swearing 
witnesses,  calculating  interest  and  the  like.  He  cannot  de- 
cide upon  the  competency  of  testimony,  or  upon  any  other 
legal  question,  and  if  he  do  so  the  adoption  and  confirmation 
of  his  decision  by  his  principal  afterwards  will  not  make  it 
good.     Ibid. 

17.  A  demand  for  dower  is  a  special  proceeding,  return- 
ble  before  the  Clerk.     Felton  v.  Elliott,  66  N.  C.  R.  105. 

18.  Proceedings  to  effect  a  settlement  of  an  estate  against 
an  executor  must  be  commenced  before  the  Probate  Court. 
But,  if  iu  the  course  of  the  proceedings,  injunctive  relief  is 
desired,  application  must  be  made  to  a  Judge  of  the  Superior 
Court.     Sprinkle  v.  Hutchison,  66  N.  C.  R.  450. 

19.  A  petition  to  make  real  estate  assets,  is  a  special  pro- 
ceeding, and  is  properly  brought  before  the  Judge  of  Probate. 
Badger  v.  Jones,  66  N.  C.  R.  305. 

20.  No  Court  except  that  of  the  Probate  Judge,  or  some 
Court  acting  on  appeal  from  him,  has  jurisdiction  to  issue 
execution  against  the  assets  of  a  decedent.  Vaughn  v.  Ste- 
phenson, 69  N.  C  R.  212. 

21.  An  action  may  be  brought  in  any  Court  having  juris- 
diction against  an  administrator,  and  judgment  obtained,  but 
no  issue  of  fully  administered  can  be  tried,  and  a  judgment 
for  the  plaintiff  merely  ascertains  the  debt      Ibid. 

22.  The  proper  practice  in  a  proceeding  against  an  ad- 
ministrator, who  at  the  time  was  Judge  of  Probate,  seems  to 
be,  to  make  the  summons  returnable  before  him,  and  then, 
under  the  provisions  of  the  act  of  1871-'72,  ch.  li)7,  transfer 
the  whole  proceedings  before  the   District  Judge,  who  wi.l 


298  JURISDICTION— III.— IV. 

make  the  necessary  orders  in  the  premises.     Wilson  v.  Ab- 
rams,  70  N".  0.  R.  324. 

23.  Courts  of  Probate  have  original  jurisdiction  of  special 
proceedings  for  the  recovery  of  distributive  shares  and  lega- 
cies which  have  not  been  assented  to  by  the  executor.  When, 
however,  actions  for  the  same  have  been  brought  to  regular 
terms  of  the  Superior  Courts,  the  defect  is  cured  by  the  act 
of  1870-'71,  ch.  108,  (Bat  Rev.  ch.  57,  sees.  425,  426.)  Bell 
v.  King,  70  N".  0.  R.  330. 

24.  The  irregularity  of  bringing  a  suit  against  an  adminis- 
trator for  the  settlement  of  his  intestate's  estate,  in  the  Su- 
perior Court  at  term  time,  instead  of  in  the  Probate  Court, 
is  cured  by  sees.  425,  420,  ch.  17,  Bat  Rev.  Herring  v.  Out- 
law, 70  N.  C.  R.  334. 

25.  Section  73,  chap.  45,  Bat.  Rev.,  gives  to  Clerks  of  the 
Superior  Courts  jurisdiction  of  debts  against  the  estate  of  de- 
ceased persons.     Jenkins  v.  Carter,  70  N.  C.  R.  500. 

IV.     JURISDICTION  OF  THE  SUPERIOR  COURT  IN  TERM,  OR   OF   THE  JUDGE. 

1.  The  value  of  a  bond  or  note  within  the  meaning  of 
Rev.  Code,  c.  31,  s.  38,  is  the  principal  and  interest  due  on 
it.     Ausley  v.  Alderman,  Phil.  L  R.  215. 

2.  When  the  value  of  a  note  is  reduced  by  endorsed 
credits  to  less  than  $100,  an  action  brought  to  the  County 
or  Superior  Court  on  such  note,  may  be  abated  on  plea  of 
the  defendant.     Ibid. 

3.  Where  there  is  a  defect  of  jurisdiction  as  to  the  sub- 
ject matter  of  a  suit,  the  court  will  stay  its  proceedings  in 
the  cause,  however  the  defect  may  be  made  to  appear. 
Israel  v.  Iveij,  Phil  L.  R.  551. 

4.  Therefore,  where  a  suit  was  brought  in  the  County 
Court  upon  a  contract  entered  into  before  the  1st  of  May 
]8G5,  and  the  date  of  the  contract  was  made  to  appear  by 
affidavit  in  the  form  of  a  plea  to  the  jurisdiction  :  held,  with- 
out deciding  whether  the  plea  was  sufficient  in  form,  that 
under  the  ordinance  of  June  1SG6,  the  Court  should  dismiss, 
upon  motion,  or  suggestion,  or  ex  mero  motu.     Ibid. 

5  In  such  case,  upon  appeal,  the  Superior  Court  acquired 
jurisdiction  only  so  for  as  to  decide  whether  the  judgment 
of  the  County  Court  was  erroueous.     1  bid. 

G.  The  acts  and  the  ordinance  which  have  taken  away 
from  the  county  courts  jurisdiction  over  contracts  entered 
into  before  May  18G5,  nre  not  on  that  account  unconstitu- 
tional.    State,  &c.  v.  Barringer,  Phil.  L.  R.  554. 


JURISDICTION— IV.  299 

7.  The  order  of  Gen.  Sickles,  No.  10,  does  not  restore 
that  jurisdiction  as  regards  minors  suing  upon  guardian  bonds, 
&c.     Ibid. 

8.  Where  a  note  with  two  sureties,  given  before  May 
1805,  was  discharged  by  one  of  theni  after  that  time:  held, 
that  the  county  court  had  jurisdiction  of  a  suit  for  contribu- 
tion, under  the  ordinance  of  June  1800,  eh.  9.  DeBossett  v. 
Bradlei/,  03  N.  0.  B.  17. 

9.  A  court  of  oyer  and  terminer  held  in  1808,  by  virtue 
of  the  Act  of  1802,  (Feb.  9.)  and  under  a  commission  from 
Governor  Holdeu  to  a  Judge  of  the  Superior  Court,  was  com- 
petent to  hear  and  determine  cases  of  crime.  State  v.  Baker, 
03  N.  C.  R.  270. 

10.  Where  a  Judge  of  the  Superior  Court  holds  a  term, 
it  will  be  taken,  prima  facie  at  least,  that  he  was  authorized 
so  to  do,  and  that  it  was  regular.     Ibid. 

11.  Civil  actions  by  a  creditor  against  an  executor  or 
administrator,  must  be  brought  to  the  Court  at  term.  Heilig 
v.  Foard,  04  N.  C.  B.  710.  ' 

12.  In  such  case,  if  the  defendant  denies  the  debt,  admit- 
ting assets,  the  action  is  tried  in  the  ordinary  way.     Hid. 

13.  If  he  deny  the  debt,  and  also,  that  he  has  assets,  the 
issue  as  to  the  debt  is  tried  in  the  ordinary  way,  and  then,  if 
the  debt  be  established,  a  reference  is  to  be  had,  to  ascertain 
the  amount  of  the  debts,  (and  their  several  classes,  in  respect 
to  administrations  before  July  1st,  180!),)  and  the  amount  of 
assets  from  all  sources;  upon  the  coming  in  of  the  report, 
after  the  exceptions,  if  any,  are  disposed  of,  a  final  judgment 
will  be  entered  in  favor  of  all  of  the  creditors  respectively  who 
have  proved  their  debts,  for  such  part  of  the  fund  as  they 
may  be  entitled  to,  and  executions  will  be  issued  accordingly 
debonis  propriis  as  formerly  upon  a  claim  in  equity.     Ibid. 

14.  A  civil  action  in  the  nature  of  a  bill  in  equity  to  sur- 
charge and  falsify  an  account  stated,  must  be  brought  before 
the  -Judge  of  the  Superior  Court  at  the  regular  term  of  the 
court,  and  not  before  the  Judge  of  Probate.  Murphy  v.  Har- 
rison, 05  N.  C.  R  246 

15.  Though  the  Court  of  Probate  has  exclusive  original 
jurisdiction  of  special  proceedings  to  recover  legacies  and  dis- 
tributive shares,  yet,  if  the  executor  has  so  assented  to  a 
pecuniary  legacy  as  to  amount  to  an  express  or  implied 
promise  to  pay  the  legacy,  it  must  be  recovered  by  a  suit  in 
the  Superior  Court.     Miller  v.  Barnes,  65  N.  C.  E.  07. 

10.  After  the  pleadings  are  made  up,  and  whilst  the  trial 
is  progressing,  it  is  irregular  to  move  to  dismiss  the  complaint, 


300  JURISDICTION— IV.— V. 

or  bill  in  equity  for  defects  apparent  upon  the  face  of  the 
complaiut,  or  bill  in  equity,  except  where  there  is  a  manifest 
defect  of  jurisdiction  in  regard  to  the  subject  matter,  as  dis- 
tinguished from  a  want  of  jurisdiction  in  respect  to  the  per- 
son, or  a  statement  of  defective  cause  of  action,  as  distinguished 
from  a  defective  statement  of  a  cause  of  action.  Mastin  v. 
Marlow,  65  N.  0.  R  095. 

17.  The  Superior  Courts  possess  no  jurisdiction  in  actions 
in  which  a  tort  is  waived  and  the  sum  received  for  property 
sold  is  sought  to  be  recovered,  if  the  amount  demanded  does 
not  exceed  $200.     Winslow  v.  Weith,  66  1ST.  O.  R.  432. 

18.  Our  Courts  as  at  present  constituted,  administer 
legal  rights  and  equities  between  the  parties,  in  one  and  the 
same  action :  hence,  iu  an  action  for  a  breach  of  covenant,  it 
is  competent  for  a  defendant  to  show  any  equity  affecting  the 
measure  of  damages.  Farmer's  Bank  N.  C.  v.  Glenn  and 
wife,  68  N.  C.  ft. "55. 

19.  Our  courts,  under  our  present  system,  gives  relief 
not  merely  to  the  extent  and  in  the  cases  where  it  was  here- 
tofore given  by  the  courts  of  law,  but  also  to  the  extent,  and 
in  the  cases  where  it  was  heretofore  given  by  the  Courts  of 
Equity;  thus  preserving  the  principles  of  both  systems,  the 
only  change  being,  that  the  principles  are  applied  and  acted 
on  iu  one  Court  and  by  one  mode  of  procedure.  Lee  et  al. 
v.  Pearce  and  wife,  68  1ST.  C.  R.  76 

20.  The  Supreme  Court  has  recognized,  since  the  adop- 
tion of  the  new  Constitution,  a  Court  of  Oyer  and  Terminer, 
as  a  Superior  Court.  And  there  is  nothing  in  the  Code  of 
Civil  Procedure  which  repeals  the  acts  under  which  Courts 
of  Oyer  and  Terminer  are  held.  State  v  Henderson,  68  N. 
C.  R.  348. 

21.  The  judicial  powers  of  the  late  county  courts  are 
given  by  the  Constitution  of  1868,  to  the  Superior  Courts, 
and  the  administration  of  the  municipal  affairs  of  the  coun- 
ties to  the  board  of  county  commissioners.  Com'rs  of  For- 
sythe  v.  Blackburn,  63  N.  C.  R  406. 

22.  The  Superior  Courts,  in  term  time,  have,  under  the 
Act  of  1872-'73,  chap.  175,  jurisdiction  of  actions  by  creditors 
against  administrators.     Johnston  v.  Davis,  70  N".  C  R.  581. 

See  (Accounts,  2.)     (Constitution,  72,  73,  80 ) 

V.     OF  THE  SUPERIOR  COURTS  IN  CRIMINAL  MATTERS. 

The  Superior  Courts  have  jurisdiction  of  all  offences  except 
such  as  have  been   heard,  or  are  pending,  before  a  Justice, 


JURISDICTION— V—  VI.  301 

according  to  the  terms  of  the  act  of  1868-9,  c.  178.     State  v. 
Drake,  64  N.  0.  R.  580. 

(Xote— The  act  of  1873-'4,  chap.  176,  adds  to  the  num- 
ber of  offences  cognizable  by  a  Justice  ot  the  Peace.) 

VI.    OF  COUETS  OF  EQUITY. 

1.  The  offices  in  the  courts  of  law  having,  in  November 
1S(»5,  become  vacant  by  the  result  of  the  late  war,  the  Pro- 
visional Judges,  (who  by  an  ordinance  of  the  Convention 
had  power  to  exercise  at  chambers  all  such  authorities  as  by 
the  laws  of  the  State  are  conferred  on  Judges  at  chambers,) 
were  authorized  to  exercise  jurisdiction  in  cases  in  which, 
when  the  courts  of  law  are  open,  equity  has  no  jurisdiction. 
Reynolds  v.  McKenzie,  Phil.  Eq.  ft.  50. 

2.  Being  so  authorized,  neither  they  nor  the  courts  which 
succeed  them  lose  jurisdiction  of  a  cause  entertained  during 
such  vacancy,  by  the  re-instatement  of  the  ordinary  tribu- 
nals in  their  usual  jurisdiction.     Ibid. 

3.  Courts  of  equity  are  not  ousted  of  their  jurisdiction 
in  regard  to  subjects  which  by  statute  have  been  committed 
to  the  jurisdiction  of  courts  of  law,  unless  there  be  in  such 
statute  express  language  or  clear  intendment  therefor.  Oli- 
veira  v.  University,  Phil.  Eq.  R.  69. 

4.  One  who  claims  in  his  own  right  a  thing  that  is  in  the 
hands  of  his  co-executor,  who  claims  it  as  belonging  to  their 
testator,  being  a  tenant  in  common  of  the  property  with 
such  co-executor,  has  his  remedy  in  equity  and  not  at  law. 
Harrington  v.  McLean,  Phil.  Eq.  R  258. 

5.  One  effect  of  the  doing  away  with  execution  by  ca.  sa. 
is  to  originate  a  jurisdiction  in  equity  to  compel  the  applica- 
tion of  legal  choses  in  action  to  the  satisfaction  of  debts.  As 
preliminary  to  its  exercise  in  any  case  the  court  will  require: 
1st,  That  the  debt  shall  be  established  by  a  judgment  at 
law,  and  2nd,  That  the  want  of  property  subject  to  a  fi.  fa, 
shall  be  shown  by  a  return  of  nulla  bona,  or  by  other  suffi- 
cient proof.  Hook,  Skinner  &  Co.  v.  Fentress,  Phil.  Eq.  R.229. 

6.  Whether  in  exercising  this  jurisdiction  other  creditors 
will  be  allowed  to  come  in  and  make  themselves  parties  and 
take  a  share  of  the  fund,  qucere.     Ibid. 

7.  A  court  of  equity  below  has  exclusive  jurisdiction  of  a 
bill  to  impeach  a  decree  ot  the  Supreme  Court  for  fraud  and 
surprise  ;  and  such  bill  may  be  filed  without  the  leave  of  the 
Supreme  Court.    Kincaid  v.  Conly,  Phil.  Eq.  R.  270. 

8.  A  bill  having  been  filed  in  1864  against  Executors  to 


302  J  URISDICTION— VI. 

obtain  a  construction  of  a  clause  in  a  will,  but  containing 
the  necessary  prayer  for  an  account  and  settlement,  in  the 
Supreme  Court,  (to  which  the  cause  had  been  transferred)  a 
reference  was  ordered  and  a  report  made  at  December  Term 
18(34,  without  notice  to  the  defendants  and  after  the  death 
of  their  counsel,  and  thereupon  a  decree  was  made  against 
the  defendants  for  the  amount  in  their  hands,  which  inclu- 
ded a  large  sum  of  Confederate  money  :  held,  a  proper  case- 
for  an  injunction,  upon  a  bill  to  impeach  the  decree.     Ibid. 

9.  Relief  administered  in  equity  mast  be  limited  to  that 
sought  by  the  frame  of  the  bill.  Latham  v.  Skinner,  Phil. 
Eq.  R.  292. 

10.  Courts  of  equity  will  not  relieve  a  party  unless  his. 
proofs  support  his  allegations,  and  the  latter  state  a  case 
entitled  to  relief.     May  v.  Hanks,  Phil  Eq.  R.  310 

11.  Since  the  act  abolishing  imprisonment  for  debt, 
courts  of  equity  have  jurisdiction  of  suits  by  judgment  credi- 
tors to  subject  their  debtors'  legal  choses  in  action,  after  a 
return  of  nulla  bona.     Powell  v.  Howell,  63  IS".  0.  R.  283. 

12.  A  bill  in  equity  asking  that  a  deed  should  be  surren- 
dered by  the  defendant,  and  he  be  enjoined  from  committing 
certain  trespasses  upon  the  land  including  therein,  upon  the 
ground  that  such  deed  had  never  been  delivered,  canuot  be 
maintained;  the  plaintiff  has  an  adequate  remedy  at  law, 
either  by  deutinue  or  trespass  quare  clausum.  Boyland  v* 
Currin,  64  N.  C.  R.  355. 

13.  The  principle  upon  which  equity  interferes  to  set  aside 
verdicts,  &c,  in  courts  of  law,  and  also  former  decrees  in 
courts  of  equity,  for  surprise,  &c,  stated.  Kincade  v.  Conley, 
64  IS".  C  R.  387. 

14.  That  the  details  of  the  decree  impeached  are  shown, 
upon  a  second  hearing  of  the  original  cause,  to  have  been 
correct,  is  not  a  result  in  conflict  with  the  decree  impeaching 
it.     Ibid. 

15.  Where  a  seal  was  attached  by  mistake  and  ignorance 
to  the  name  of  a  firm  signed  to  a  note  given  for  value,  the 
mistake  was  corrected  in  equity,  and  the  plaintiff  was  allow- 
ed to  recover  as  if  there  had  been  no  seal.  Lyman  v.  Cali- 
fer,  64  N.  C.  R.  572. 

16.  That  the  plaintiffs  in  equity  were  not  served  with 
process,  in  a  petition  at  law  by  the  defendants  against  them, 
is  ground  for  a  proceeding  in  such  petition,  to  have  relief,  but 
none  for  a  bill  in  equity.     Finger  v.  Finger,  64  N.  C.  R.  183. 

17.  Where  a  Physician  had  an  account  running  through 
a  period  of  many  years  against  A  for  medical  service  ren- 


JURISDICTION— VI.  303 

dered,  whilst  the  latter  had  an  account  against  the  Physi- 
cian for  agricultural  products  furnished  him  at  various  limes, 
and  these  transactions  had  no  business  connections  with  each 
other,  but  were  entirely  independent,  and  mere  matters  of 
set-off:  held,  that  a  bill  in  equity  could  no  t  be  sustained  for 
an  account  and  settlement  of  the  demands  existing  between 
the  parties.     Haywood  v.  Butchins,  05  N.  C.  Li  574. 

18.  Where  one,  who  stands  in  the  position  of  a  quasi 
mortgagee  of  land,  sells  the  same  to  a  purchaser  with  notice 
ot  the  equity  ot  the  quasi  mortgagor,  such  purchaser  takes 
subject  to  such  equity.     Ghormty  v.  Skerrill,  66  N.  C  R.  527. 

19.  Where  one  T  handed  to  B  certain  papers  which  would 
enable  the  holder  to  procure  certain  tracts  of  land,  receiving 
from  B  certain  depreciated  currency  with  the  understanding 
that  he  should  take  out  the  grants  in  his  own  name,  and 
whenever  T  paid  him  $750  91  in  greenbacks  B  should  convey 
to  T ;  and  B  took  out  the  grants  in  his  own  name  and  sold 
and  conveyed  certain  of  the  tracts  to  G  with  notice  of  his 
trust  to  T  :  held,  that  T  had  an  equity  of  redemption,  and 
that  the  purchase  money  paid  by  G  to  B  should  be  regarded 
as  paid  by  T  to  B  in  redemption  :  held  farther,  that  a  pur- 
chaser of  the  land  from  T  before  any  of  those  transactions, 
is  entitled  to  take  the  place  of  T  and  succeeds  to  his  equita- 
ble rights.     Ibid. 

20.  The  power  to  appoint  a  receiver  is  necessarily  inherent 
in  a  court  which  possesses  equitable  jurisdiction,  and  it  is 
exercised  when  an  estate  or  fund  is  in  existence,  and  there 
is  no  competent  person  to  hold  it,  or  the  person  so  entitled 
is  in  the  nature  of  a  trustee,  and  is  misusing  or  misapplying 
the  property.  The  Code  of  Civil  Procedure  does  not  mate- 
rially change  the  equitable  jurisdiction  of  our  courts  on  the 
subject. — C.  C.  P.,  sec.  215.  Skinner  v.  Maxwell,  b'G  N.  C. 
R    45. 

21.  On  the  principle  of  protection,  a  receiver  may  be 
appointed  of  an  infant's  estate  if  it  be  not  vested  in  a  trustee ; 
and  when  there  is  a  mixture  of  property  and  the  different 
interests  of  the  parties  cannot  be  ascertained  until  proper 
invoices  are  made,  and  a  division  effected  under  the  direction 
of  the  courts  (Adams'  Eq.  352-'53. — 1  Parsons  on  Con- 
tract.)    Ihid. 

22.  A  court  of  equity  has  the  power  to  appoint  a  receiver 
for  the  purpose  of  securing  and  protecting  property,  which 
is  the  subject  of  litigation.  He  is  an  officer  of  the  court, 
and  bis  possession  of  the  property  is  the  possession  of  the 
court.     He   holds  such  property  as  a  custodian,  until  the 


304  J  UEIsDICTION— VI— VII. 

rightful  claimant  is  ascertained  by  the  court,  and  then  for 
for  such  elaimant.     Battle  v.  Davis,  60  N.  0.  E.  252. 

23.  A  receiver  cannot  commence  any  action  for  the  re- 
covery of  property  without  an  order  of  the  Court,  and  when 
such  order  is  made,  the  action  must  be  brought  in  the  name 
of  the  legal  owner,  and  he  will  be  compelled  to  allow  the  use 
of  his  name  upon  being  properly  indemnified  out  of  the  estate 
and  effects  under  the  control  of  the  Court.     Ibid. 

24.  The  power  of  a  receiver  to  bring  an  action  is  regula- 
ted by  the  rules  of  a  Court  of  Chancery.  An  order  to  sue  in 
his  own  name  cannot  be  given  by  our  Courts,  and  the  United 
States  Courts  cannot  confer  upon  him  greater  powers  or  pri- 
vileges as  a  suitor  in  the  State  Courts.     Ibid. 

25.  A  Court  of  Equity  never  regards  a  seal,  and  since  law 
and  equity  is  now  administered  in  the  same  Court,  a  seal  has 
lost  much  of  its  ancient  dignity.  Bryan  v.  Foy,  69  1ST.  C.  E.  45. 

26.  The  jurisdiction  conferred  on  our  former  Courts  of 
Equity  by  the  ordinance  of  the  23d  of  June,  1866,  in  favor  of 
creditors  following  assets  into  the  hands  of  fraudulent  alienees, 
is  concurrent  with  that  given  to  Courts  of  law  by  ch.  46,  sees. 
44,  et  seq.  of  the  Eev.  Code.  Humphrey  v.  Wade,  70  N.  L. 
E.  289. 

27.  Statutes  which  merely  give  affirmative  by  jurisdiction 
to  one  Court  do  not  oust  that  previously  existing  in  another 
Court. 

See  (Sales — Judicial  sales  passim.)  (Trusts  and  Trustees 
passim ) 

VII.     JURISDICTION  OF  THE  FEDERAL  COURT. 

The  Circuit  Courts  of  the  United  States  have  not  juris- 
diction of  a  case  either  at  law  or  in  equity,  in  which  a  State 
is  plaintiff  againt  its  own  citizens.  The  Constitution  of  the 
United  States  does  not  confer  such  jurisdiction,  nor  is  it  con- 
ferred by  auy  act  of  Congress.  Such  jurisdiction  is  not  con- 
ferred upon  the  Circuit  Court  in  this  case  by  the  bankruptcy 
act  of  1867,  because  there  are  other  necessary  parties  than 
the  assignee  in  bankruptcy,  and  without  such  parties  the 
plaintiff  could  not  sustain  his  suit  in  any  court.  The  State 
of  North  Carolina  v.  The  Trustees  of  the  University,  65  N". 
C.  E.  714. 

See  (Bankruptcy,  7,  8,  9.) 


JURISDICTION— VIIL— JURY— I.  305 

VIII.     CONCURRENT  JURISDICTION  OF  COUETS. 

1.  "Where  two  or  more  courts  have  equal  and  concurrent 
jurisdiction  of  a  case,  that  court  in  which  suit  is  first  brought 
acquires  jurisdiction  of  it,  which  excludes  the  jurisdiction  of 
the  other  courts.     Ohihls  v.  Martin,  09  N.  0.  R.  126. 

2.  The  persons  who  allege  that  the  judgment  had  been 
obtained  in  the  first  action  by  a  fraudulent  combination  and 
contrivance,  instead  of  bringing  a  second  action,  in  another 
court,  ought  to  have  made  themselves  parties  to  the  first 
action  and  to  have  asked  as  u  a  motion  in  the  cause"  to  have 
the  judgment  reheard,  and  in  the  meantime  for  a  superse- 
dias,  «x:c.     Ibid. 


I.     Of  challenges  to  the  jury. 
II.     Of  the  pay  of  jury. 


JURY. 

III.     Of  the  grand  jury. 


I.    OF  CHALLENGES  TO  THE  JUEY. 


1 .  A  special  venire  having  been  summoned  for  the  trial 
of  a  prisoner,  upon  a  day  previous  to  the  day  of  trial:  held, 
that  a  successful  challenge  by  the  prisoner  to  the  array  of  the 
original  pauel,  did  not  necessarily  affect  the  competency  of 
the  special  venire  to  act  as  jurors  in  the  case.  State  v.  Owen, 
Phil.  L.  R.  425. 

2.  In  the  course  of  selecting  a  jury  for  the  trial  of  a  capi- 
tal crime,  two  persons  who  had  been  called  and  challenged 
by  the  prisoner  for  cause  and  confessed  such  cause,  in  reply 
to  further  questions  upon  the  same  point  by  the  Court,  made 
disrespectful  answers :  held,  to  have  been  proper  for  the  Court 
so  rebuke  such  persons  pointedly,  and  that  no  rights  of  the  pri- 
toner  were  infringed  thereby.  State  v.  Hicks,  Phil.  L.  R.  441. 

3.  It  is  no  ground  of  exception  that  a  special  venire  was 
selected  from  the  freeholders  of  the  county  without  regard  to 
color,  no  reference  having  been  had  to  the  jury  list  constitu- 
ted by  the  County  Court.     Ibid. 

4.  In  a  case  where  the  list  of  registered  voters  of  a  county 
was  in  the  hands  of  the  military  authorities,  and  the  proper 
civil  officers  for  drawing  a  jury  were  unable  to  procure  a  copy 
of  such  list :  held,  that  the  order  of  September  13,  18G7,  re- 
quiiing  jurors  to  be  registered  voters,  did  not  apply.  State 
v.  Holmes,  63  X.  C.  R.  18. 

o.     Where  a  prisoner  had  already  accepted  as  jurors  three 
20 


306  JURY— I. 

colored  persons :  held,  that  he  bad  no  right  to  challenge  a 
fourth  juror  when  tendered,  on  the  ground  that  he  was  a  col- 
ored person.    Ibid. 

6.  A  special  venire  summoned  previous  to  the  day  of  trial 
cannot  he  successfully  challenged  because  the  original  panel 
was  set  aside  upon  a  challenge  to  the  array.  State  v.  Me- 
Curry,  63  N.  0.  R.  33. 

7.  Objection  to  the  manner  of  summoning  the  grand  jury, 
can  only  be  taken  before  trial;  and  such  objection  to  the  petit 
jury  or  special  venire,  by  challenging  the  array.  State  v. 
Douglas,  63  N.  0.  R.  500. 

8.  It  is  permitted  to  the  presiding  Judge  to  order  a  spe- 
cial venire  only  for  the  trial  of  persons  charged  with  capital 
offences,  and  therefore  a  refusal  to  make  such  an  order  upon 
a  trial  for  arson  is  correct.     State  v.  Bullock,  63  N.  0.  R.  570. 

9.  A  juror  who  is  a  non-resident  of  the  county  in  which 
the  trial  is  had,  is  liable  to  be  challenged  therefor.     Ibid. 

10.  A  colored  person  upon  trial  for  crime,  has  a  right  to 
object  to  any  one's  sitting  in  his  case  as  a  juror,  who  "  be- 
lieves that  he  cannot  do  impartial  justice  between  the  State 
and  a  colored  person11;  therefore,  where  the  Court  refused  to 
allow  a  preliminary  question  to  that  effect,  to  be  asked :  held, 
to  be  error.     State  v.  McAfee,  64  N.  0.  R.  33  >. 

11.  A  challenge  to  a  juror  must  be  made  in  u  apt  time," 
and  before  the  jury  are  empanelled.  If,  after  a  jury  have 
been  empannelled  and  charged,  exception  is  made,  it  is  not 
in  "apt  time"  After  verdict  it  is  a  matter  of  discretion 
for  the  judge,  whether,  under  such  circumstances,  he  will 
grant  a  new  trial.     State  v.  Perkins,  66  N.  0.  R.  126. 

12.  In  an  indictment  for  a  misdemeanor,  a  defendant  has 
a  right  to  challenge  a  juror  for  cause,  and  this  right  is  not 
confined  to  capital  cases.     State  v.  Fulton,  66  N.  O.  R.  632. 

13.  Where  a  defendant  proposes  to  challenge  a  juror  tor 
cause — and  the  judge  announces  generally  that  such  chal- 
lenges are  ''  unusual,"  except  in  capital  cases — it  is  not  nec- 
essary that  the  defendant  should  name  the  particular  juror, 
nor  assign  a  special  cause.     Ildd. 

14.  The  supposed  analogy  between  a  cause  of  challenge 
and  an  exception  to  evidence  does  not  exist.     Ibid. 

15.  After  jurors  are  sworn,  but  before  they  are  empan- 
nelled, it  is  competent  for  the  court  to  allow  a  challenge  for 
cause.     State  v.  Adair,  66  N.  0.  R.  298. 

10.  The  fact  that  a  juror  is  not  a  resident  of  the  county 
in  which  the  indictment  is  tried,  is  a  good  ground  of  chal- 
lenge, but  not  for  a  new  trial  after  a  verdict  is  rendered. 
State  v.  White,  68  H".  C  R.  158. 


JURY-I.-II -III —LANDLORD  AND  TENANT.  307 

17.  It  is  no  good  cause  of  challenge  that  the  juror  has 
formed  and  expressed  au  opinion  adverse  to  the  prisoner, 
such  opinion  being  founded  on  rumor--aud  the  juror  further 
stating  that  he  could  try  the  case  according  to  the  law  and 
evidence,  uninfluenced  by  any  opinion  he  may  have  so  formed 
from  such  rumor.     State  v.  Collins,  70  N.  0.  R  241. 

18.  The  fact  of  a  juror's  beiug  first  cousin  to  the  priso- 
ner, is  no  good  cause  of  challenge  by  the  prisoner,  unless  it 
be  shown  that  ill  feeling  or  bad  blood  exists  between  the 
juror  and  the  prisoner.     State  v.  Ketchey,  70  N.  0.  R.  G21. 


n.     OF  THE  PAY  OF  JURORS. 


One  summoned  as  a  juror  on  a  coroner's  inquest,  is  not 
entitled  to  any  compensation.  Green  v.  Wynne,  GO  N.  0.  R. 
530. 


III.     OF  THE  GRAND  JURY. 


A  Judge  of  the  Superior  Court  has  no  right  to  require  a 
grand  jury  to  have  the  witnesses  on  the  part  of  the  State 
examined  publicly.     State  v.  Branch,  08  N.  0.  R.  180. 


LANDLORD   AND   TENANT. 

1.  An  agreement  by  him  who  cultivates  land  that  the 
owner  who  advances  "guano,  seed-wheat,"  &c,  shall  out  of 
the  crop  be  repaid  in  wheat  for  such  advancements,  consti- 
tutes the  former  a  cropper  and  not  a  tenant.  State  v.  Bur- 
n-ill, 63  N.  0.  R.  661. 

2.  The  crude  turpentine  which  has  formed  on  the  body 
of  the  tree,  and  is  called  "  scrape,"  is  personal  property,  and 
belongs  to  the  lessee  of  the  trees,  who  lias  the  right  of  ingress 
and  egress  to  take  it  away  after  his  lease  has  expired,  pro- 
vided that  he  does  so  in  a  reasonable  time,  which  must  be 
before  the  sap  begins  to  flow  in  the  subsequent  Spring  of  the 
year.     Lewis  v.  McNatt,  05  N.  0.  R.  03. 

3.  The  principle  that  a  tenant  cannot  dispute  his  land- 
lord's title  is  in  full  force,  but  a  tenant  was  never  prevented 
from  showing  an  equitable  title  in  himself,  or  any  facts  which 
would  make  it  inequitable  to  use  his  legal  estate  to  deprive 
him  of  the  possession.     Turner  v.  Lowe,  00  N.  0.  11.  413. 

4.  For  this  purpose,  formerly,  the  tenant  was  driven  into 
equity,  but  under  the   present  system,  the   tenant  in  such 


308  LANDLORD  AND  TENANT. 

cases  can  avail  himself  of  such   equitable  defence  by  bis 
answer.    Ibid. 

5.  If  such  a  defence  cannot  be  set  up  in  a  Superior  Court, 
it  cannot  be  anywhere,  as  we  have  no  separate  Courts  of 
Equity.     Ibid. 

6.  When  the  makers  of  a  note,  given  for  the  rent  of  land, 
set  up  as  a  defence  to  the  action,  that  the  payees  in  said  note 
had  no  title  to  the  land  and  no  right  to  lease  the  same,  and 
it  was  replied,  that  the  guardian  of  the  real  owners  of  the 
land  had,  since  the  lease  was  given,  ratified  the  same  by 
receiving  payment,  and  had  entered  a  retraxit  in  a  suit 
brought  against  one  of  the  occupants  under  the  lease  :  held, 
that  such  replication  was  sufficient  to  defeat  the  defence  re- 
lied ou.     McKesson  v.  Jones,  66  N.  C.  R.  258. 

7.  The  mere  fact  that  there  is  a  paramount  title  outstand- 
ing, or  a  claim  set  up  against  the  tenant  by  the  true  owner, 
will  not  authorize  him  to  dispute  the  title  of  his  landlord. 
He  must  have  been  compelled  to  make  some  payment  to 
the  true  owner,  to  avoid  au  eviction,  and  such  payment  is 
regarded  as  a  payment  to  the  landlord,  and  to  be  deducted 
from  the  rent.     Ibid. 

8.  Whatever  may  have  been  the  rule  under  the  former 
practice,  under  the  provisions  of  the  0.  C.  P.,  a  landlord  let 
in  to  defend  in  a  civil  action  for  the  recovery  of  land,  is  not 
restricted  to  the  defences  to  which  his  tenant  is  confined,  nor 
is  this  principle  varied  by  the  circumstances  that  the  plaintiff 
is  purchaser  at  execution  sale  against  such  tenant,  and  that 
the  latter  was  in  possession  at  the  date  of  the  sale  and  of  the 
commencement  of  the  action.    Isler  v.  Foy,  6(5  N.  C.  R.  546. 

9.  A  bargainor  in  a  deed  in  trust,  containing  a  stipulation, 
for  the  retention  of  the  possession  of  the  land  conveyed,  until 
sold  under  the  terms  of  the  trust,  who  holds  possession  after 
a  sale  of  the  premises  by  a  trustee  is  not  such  a  tenant  as 
comes  within  the  purview  of  the  landlord  and  tenant  act  (acts 
of  1868-69,  chap.  156,)  and  hence  proceedings  cannot  be 
taken  under  that  act  to  evict  him.  McCombs  v.  Wallace,  (5(S 
N.  C.  R.  587. 

10.  The  act  was  only  intended  to  apply  to  a  cause  in 
which  the  tenant  entered  into  possession  under  some  contract 
of  lease,  either  actual  or  implied  with  the  supposed  landlord 
or  with  some  person  whom  the  landlord  claimed  in  privity  or 
where  the  tenant  himself  in  privity  with  some  person  who 
had  so  entered.     Hid. 

11.  This  construction  excludes  from  the  operation  of  the 
act,  two  classes,  viz :  vendees  in  possession  under  a  contract 


LANDLORD,  &c— LARCENY.  309 

for  title  and  vendors  retaining  possession  after  a  sale,  though 
such  persons  are  certainly  tenants  at  will  or  sufferance   for 
some  purposes  and  frequently  so  styled.     Ibid. 
See  (Constitution,  GO,  61.)     (Bankruptcy,  8.) 


LARCENY. 

1.  A  took  a  bucket  of  peas  to  market  and  having  occasion  to 
go  some  distance  to  enquire  the  price  of  peas,  set  the  bucket 
down  in  a  cart  which  he  mistook  for  that  of  a  friend ;  the 
owner  of  the  cart  returning  to  it  placed  the  bucket  upon  the 
around,  and  afterwards  being  about  to  leave  the  market, 
raised  it  up  and  asked,  "  Whose  are  they  ?"  whereupon  B, 
a  retailer  of  vegetables,  came  up  and  placed  his  hand  upon 
the  bucket,  and  then  took  it,  the  owner  of  the  cart  yieldiug 
it  and  saying,  "You  must  give  it  up  to  the  owner  when  he 
comes  and  calls  for  it ;"  afterward  A  found  B  with  the  bucket, 
beets  aud  lettuce  having  been  placed  upon  the  peas,  and  B 
manifested  insolence  and  unwillingness  to  surrender  it:  held, 
that  there  was  evidence  from  which  a  jury  might  infer  every 
ingredient  of  larceny.     State  v.  Farrow,  Phil.  L.  R.  161. 

2.  Petit  larceny  might  at  common  law  be  punished  by 
imprisonment.     State  v.  Kearsey,  Phil.  L.  R.  481. 

3.  The  Act  of  18G6-'G7,  ch.  82  (25th  February  18G7) 
which  punishes  the  stealing  of  mules,  &c,  with  death,  did 
not  repeal  the  law  prohibiting  that  crime  previously,  except 
as  to  offences  thereafter  committed  ;  therefore  where  one  was. 
convicted  at  Fall  Term  18G7  of  stealing  a  mule,  under  an 
indictment  found  in  December  18GG  :  held,  that  the  question 
of  punishment  was  not  affected  by  the  Act  first  mentioned. 
State  v.  Putney,  Phil.  L.  R.  543. 

4.  An  indictment  for  larceny  which  describes  the  thing 
stolen  as  "  oue  promissory  note  issued  by  the  Treasury  de- 
partment of  the  government  of  the  United  States  for  the 
payment  of  one  dollar,"  is  in  that  respect  sufficient.  State 
v.  Fulford,  Phil.  L.  R.  5G3. 

5.  Where  there  is  no  contradiction  between  two  witnesses 
in  a  trial  for  larceny,  the  court  may  so  instruct  the  jury. 
State  v.  Iloraii,  Phil.  L.  K.  591. 

G.  The  court  may  instruct  the  jury  as  to  the  effect  of 
certain  testimony  if  believed.    Ibid. 

7.  A  verdict  finding  the  defendant  "guilty  of  receiving 
stolen  <foods,  knowing  them  to  hare  been  stolen?  is  sufficient,, 
without  specifying  such  goods.     I  bid. 


310  LAEOENY. 

8.  A  person  may  be  indicted  under  Rev.  Code,  ch.  34, 
sec.  20,  for  stealing  a  National  Bank  note.  State  v.  Banks, 
Phil.  L.  E.  577. 

9.  If  a  servant  entrusted  with  the  custody  of  goods  by 
his  master,  fraudulently  take  them  to  convert  them  to  his 
own  use,  he  is  guilty  of  larceny.  State  v.  Jarvis,  63  N.  0. 
E.  556. 

10 .  Justices  of  the  Peace  have  no  jurisdiction  of  larceny. 
This  offence  remains  under  the  cognizance  of  the  Superior 
Courts.     1  hid. 

11.  An  indictment  for  stealing  "fifty  pounds  of  flour,  of 
the  value  of  sixpence,"  is  good ;  and  is  sustained  by  proof 
that  the  party  charged,  stole  a  sack  of  flour,  although  there 
was  no  proof  of  its  weight,  or  of  its  value,  further  than  that 
the  defendant  had  said  that  he  gave  five  and  a  half  dollars 
for  it.     State  v.  Harris,  64  N.  C.  E.  1'27. 

12.  From  the  rule,  that  indictments  upon  statutes  it  is  safe 
to  use  the  very  words  of  the  statute,  are  to  be  excepted  cases 
in  which  a  statute  (in  enumerating  offences,  charging  intent, 
<£e.,)  uses  the  adjective  or :  In  some  such  cases  and  is  to  be 
substituted  for  or:  in  others,  doubts  as  to  the  proper  terms 
are  to  be  met  by  using  several  counts;  and  or  is  never  used, 
unless  in  the  statute  it  means  to  wit,  or  is  surplusage  :  there- 
fote,  an  indictment  for  larceny,  which  charges  the  thing 
taken,  to  be  the  property  ot  J.  E.  D.,  ''  and  another  or  oth- 
ers," (in  the  words  of  the  Eev.  Code,  chap.  35,  sec.  19,)  is 
fatally  defective,  and  no  judgment  can  be  given  thereupon. 
State  v.  Harper,  64  N.  C.  E.  129. 

13  One  who  borrows  a  horse  with  an  intention,  existing 
at  the  time,  of  stealing  him,  is  guilty  of  larceny;  and  no 
change  of  mind  after  such  taking  will  purge  the  offence. 
State  v.  Scott,  64  N.  C.  E.  586. 

14.  A  nugget  of  gold  separated  from  the  vein  by  natural 
causes,  savers  of  the  realty,  and,  so,  is  not  a  subject  of  lar- 
ceny.    State  v.  Burt,  64  N.  C.  E.  619. 

15.  Here,  the  nugget  was  found  upon  a  loose  pile  of 
rocks,  and  was  taken  and  carried  away  at  one  continued  act 
J  hid. 

16.  Where,  in  an  indictment  for  larceny,  it  was  charged  that 
the  article  stolen  was  the  property  of  II.  Hoffa,  whose  given 
name  was  to  the  jurors  unknown,  and  it  was  testified  by  wit- 
nesses that  they  knew  of  no  other  name  of  the  owner  of  the, 
article  than  H.  Hoffa,  it  was  held,  that  there  was  no  variance 
between  the  allegation  and  the  proof.  State  v.  Bellx  65 
K  C.  E.  313. 


LARCENY.  311 

17.  The  owner  of  an  article  charged  to  have  been  stolen, 
may  have  a  name  by  reputation,  and  if  it  be  proved  that  he 
is  as  well  known  by  that  name  as  any  other,  a  charge  in 
an  indictment  by  that  name  will  be  sufficient.     Ibid. 

18.  If  a  person  usually  signs  his  name  with  only  the  ini- 
tials of  his  christian  name,  and  he  is  thus  generality  known 
and  designated,  he  mav  be  properly  indicted  by  such  name. 
Ibid. 

19.  Upon  a  conviction  for  larceny,  a  sentence  "  that  the 
defendant  be  imprisoned  in  the  State  prison  for  one  year,  and 
in  the  meantime  and  until  he  is  carried  there,  that  he  be  im- 
prisoned in  the  county  jail,"  is  sufficiently  definite  as  to  the 
term  of  imprisonment  in  the  State  prison  to  be  valid  under 
the  Act  of  1808-'9,  cb.  166,  sees.  9  and  10,  which  declares 
that  the  term  "  shall  begin  to  run  upon  and  include  the  day 
of  conviction."     State  v.  Gasldns,  65  N.  0.  R.  320. 

20.  A  change  in  the  punishment  of  larceny  from  whipping 
and  imprisonment  at  common  law  to  imprisonment  in  the 
State's  prison  or  county  jail  for  not  less  than  four  mouths  nor 
more  than  ten  years,  is  not  liable  to  the  objection  of  an  ex 
post  facto  law.  The  rule  is,  not  that  the  punishment  cannot 
be  changed,  but  that  it  caunot  be  aggravated.  State  v.  Kent, 
65  N.  G.  R.  311. 

21.  The  turning  of  a  barrel  of  turpentine  which  was  stand- 
ing on  its  head,  over  on  its  side,  with  a  felonious  intent,  is 
not  such  an  asportation  as  constitutes  larceny.  State  v.  Jones, 
65  N.  0.  R.  395. 

22.  Where  a  prosecutor,  being  drunk  and  partially  para- 
lized,  and  having  a  belt  with  money  around  his  body,  was  sit- 
ting with  his  head  beut  down,  and  alone  with  the  defendant 
in  his  bar-room,  the  latter  gently  removed  the  belt  and  money 
from  the  prosecutor's  body,  upon  which  the  prosecutor,  rais- 
ing his  head  and  seeing  the  belt  in  his  hand,  asked  him  to 
give  back  his  money,  to  which  he  replied,  "  no,  I'll  keep  it," 
and  afterwards,  upon  the  prosecutor's  stepping  out  for  a  mo- 
ment, the  defendant  refused  to  let  him  come  in  again,  and 
never  returned  his  belt  or  money,  it  was  held,  that  these  facts 
tended  to  prove  a  larceny  of  the  belt  and  money  by  the  defen- 
dant.    State  v.  Jackson,  65  N.  C.  R.  305. 

23.  It  is  a  sufficient  carrying  away  to  constitute1,  the  crime 
of  larceny,  that  the  goods  are  removed  from  the  place  where 
they  were,  and  the  thief  has,  for  an  instant,  the  entire  and 
absolute  possession  of  them.     Ibid. 

24.  An  otter  is  an  animal  valuable  for  its  fur,  and  though 
it  be  one  ferir  naturw,  yet,   if  it  be  reclaimed,  confined  or 


312  LAECENY. 

dead,  the  stealing  it  from  its  owner  is  larceny.  State  v.  House,, 
65  K  C.  E.  315. 

25.  A  person  employed  as  a  "  field  band,"  working  by  the 
day,  week  or  month,  has  no  charge  of  his  employer's  money, 
and  if  the  latter  entrust  him  with  money  and  he  embezzles 
it  he  is  not  guilty  of  larceny.     State  v.  Burin,  65  N.  C  E.  317. 

26.  An  indictment  at  common  law  for  larceny  in  stealing 
a  cow,  is  not  supported  by  proof  that  the  cow  was  shot  down 
and  her  ears  cut  off  by  the  defendants.  Such  acts  would 
have  supported  an  indictment  tor  malicious  mischief,  or  an 
indictment  under  the  act  of  1866,  ch.  57,  for  injuring  live 
stock  with  intent  to  steal  them.  State  v.  Butler,  65  N.  0. 
E.  309. 

27.  A  person  found  in  possession  of  goods  recently  stolen, 
is  presumed  in  the  law  to  be  the  thief ;  and  it  is  not  neces- 
sary for  the  State  to  show  that  any  other  suspicious  circum- 
stance accompanied  such  possession.  State  v.  Turner,  65 
N.  0.  E.  592. 

28.  The  defendant  may  rebut  this  presumption  ;  but  if  he 
does  not  show  that  he  received  the  goods  honestly,  it  is  the 
duty  of  a  jury  to  couvict  him.     IMd. 

29.  The  defendant  is  entitled  to  an  acquittal,  when  the 
indictment  charges  the  stealing  of  a  steer,  whilst  the  evidence 
shows  it  was  a  bull.     State  v.  Royster,  65  N.  0.  E.  539. 

30.  The  turkey  is  a  domestic  animal ;  therefore,  when  a 
bill  of  indictment  charges  that  "A  B,  one  turkey  of  value  of 
six  pence,  of  the  goods  and  chattels  of  0  D,  feloniously  did 
steal,  take,  and  carry  away :"  held,  that  such  an  indictment 
is  sufficient  in  law.     State  v.  Turner,  66  N.  0.  E.  618. 

31.  Distinction  between  stealing  domestic  animals  and 
animals  ferce  naturae  stated  by  Boyden,  J.     Ibid. 

32.  If  one,  by  trick  or  contrivance,  gets  possession  of  the 
goods  of  another,  and  the  act  be  done  in  such  a  way  as  to 
show  a  felonious  intention  to  evade  the  law,  he  is  guilty  of 
larceny,  as  where,  in  addition  to  other  instances,  stared  in 
State  v.  Deal,  64  N.  C.  E.,  one  snatches  money  from  the 
hands  of  a  man,  and  immediately  escapes  to  evade  the  pro- 
cess of  law.     State  v.  Henderson,  66  N.  0.  E.  627. 

33.  To  constitute  larceny,  the  felonious  taking  must  be 
done  fraudulently  and  secretly,  so  as  not  only  to  deprive  the 
owner  of  his  property  but  also  to  leave  him  without  knowl- 
edge of  the  taker.     State  v.  Bedford,  67  N.  0.  R.  60. 

34.  In  an  indictment  for  larceny,  the  property  stolen  was 
charged  as  "the  goods  and  chattels  of  S.  L.  Williams,"  and 
it  appeared  on  the  trial  that  it  belonged  to  Samuel  L.  Wil- 


LARCENY.— LEGACY— I. 


313 


liams  :  held,  that  if  the  objection  had  been  taken  on  the  trial, 
it  would  have  been  a  question  for  the  jury  whether  S.  L.  and 
Samuel  L.  were  one  and  the  same  person  :  held  further,  that 
the  defendants  were  concluded  by  the  verdict,  which  found 
them  "  guilty  as  charged  in  the  indictment.  State  v.  McMil- 
lan, 68  N.  C.  R.  440. 

35.  Where  an  indictment  charged  the  larceny  of  a  horse 
to  have  been  committed  at  a  certain  time  since  the  passage 
of  the  statute  which  prescribed  the  punishment  of  such  a 
larceny,  and  the  defendant  was  found  guilty,  judgment  can- 
not be  arrested  upon  the  ground  that  prior  to  that  time 
there  had  beeu  several  statutes  prescribing  different  modes, 
of  punishment.     State  v.  Evans,  69  N.  C.  11.  40. 

30.  Larceny  may  be  committed  in  a  crowd  or  in  the  pub- 
lic streets  ;  and  where  the  defendant  obtained  possession  of 
a  hog  from  a  stranger,  claiming  it  as  his  own,  and  carried  the 
hog  home,  altered  the  mark  and  put  it  in  the  pen  with  his. 
other  hogs  :  held,  it  to  be  no  error  in  the  Judge  below,  to  leave 
it  to  the  jury  to  say  whether  the  taking  was  done  for  the 
purpose  of  depriving  the  real  owner  of  his  property,  and  con- 
verting the  same  to  his  own  use  or  not ;  and  if  so,  the  defen- 
dant was  guilty.     State  v.  Fisher,  70  N.  C.  R.  78. 

See  (Indictment — Form  and  matters  relating  thereto,  3,  4,. 
9,  10,  30,  45.) 


I. 


ii. 


in. 


LEGACY. 

Construction  as  to  what  possess 

IV. 

ami  who  takes. 

Specific  or  general  and  of  the 

V. 

abatement  of  legacies. 

VI. 

Whether  vested,   contingent  or 

VII. 

executory. 

VIII. 

When  a  charge  upon  a  real  es- 
tate. 

Of  debts  charged  upon  lands. 

Bequest  of  the  residue. 

Lapsed  and  void  legacies. 

Of  the  assent  of  the  executor 
and  its  etlect. 


I.     CONSTRUCTION  AS  TO  WHAT  POSSESS  AND  WHO  TAKES. 

1.  A  testator  provided  as  follows  :  "  I  lend  unto  my  be- 
loved wife,  Mary  C; .  Sawyer,  all  of  my  real  and  personal  estate, 
to  have  and  to  hold  the  same  during  her  natural  life,  and  at 
her  death  I  give  the  same  to  be  equally  divided  between  the 
heirs  of  my  beloved  wife,  Mary  Or.  Sawyer,  and  my  heirs  at 
law."  Held  upon  the  death  of  the  wife,  that:  The  rule  of 
distribution  per  stirpes  governs  as  well  the  division  between 


•314  LEGACY— I. 

the  "  heirs"  of  the  wife,  and  "  heirs  at  law  "  of  the  testator, 
as  that  of  the  portion  given  to  the  latter  class,  among  them- 
selves. Technical  words,  in  the  absence  of  explanation  upon 
the  face  of  a  will,  will  be  taken  in  a  technical  sense.  A  word 
repeated  in  the  same  clause  of  a  will  must,  at  each  repetition, 
.have  the  same  meaning  attached  to  it.  Where  a  direction  is 
given  for  the  equal  division  of  a  fund  among  several  named 
persons,  and  "the  heirs"  of  another  person,  and  it  appears 
that  by  u  heirs  "  is  meant  children,  such  division  must  be  per 
capita:  but,  when  the  word  "heirs"  must  include  not  only 
children,  but  grand-children,  &c,  then  the  division  must  be 
per  stirpes.     Grand)/  v.  Sawyer,  Phil.  Eq.  R.  8. 

2.  Where  a  testator  used  the  following  expressions  :  "I 
give  and  bequeath  unto  my  wife  Sarah,  all  of  the  property  that 
I  possess  at  the  time  of  my  death,  consisting  of  all  my  real 
estate  of  all  kinds,  and  all  my  money,  notes  and  accounts,  af- 
ter paying  all  my  just  debts :"  "  My  father  and  mother  are 
to  have  the  land,  lying  on  the  south-east  side  of  the  Reedy 
Branch,  of  the  tract  where  they  now  live,  and  the  stock, 
household  and  kitchen  furniture  at  that  place,"  and  mention- 
ed no  other  things  in  his  will,  although  he  died  in  possession 
of  fifteen  or  more  slaves,  and  of  horses,  cattle,  crops,  &c: 
held,  that  the  wife  was  constituted  universal  legatee,  except  as 
to  what  was  expressly  given  to  the  father  and  mother.  Bun- 
ting v.  Harris,  Phil.  Eq  R.  11. 

3.  By  Pearson,  0.  J.,  arguendo;  The  words  used  in  dif- 
ferent wills  are  so  different,  aucl  the  circumstauces  of  testa- 
tors in  regard  to  property  and  the  objects  of  bounty  are  so 
various,  that  it  is  almost  impossible  to  find  one  case  upon 
such  subjects  that  ought  to  govern  another.  In  doubtful 
questions  of  construction  something  must  be  yielded  to  the 
contemporaneous  action  of  the  parties  concerned.     Ibid 

4  Where  a  testator  having  devised  certain  property  to 
his  wife,  ordered  that  after  her  death,  the  remainder  should 
"  be  divided  amongst  our  next  of  kin,"  and  died  leaving  no 
persons  who  were  next  of  kin  of  both  :  held,  that  the  prop- 
erty should  be  divided  into  two  equal  parts  and  given,  one 
to  the  next  of  kin  of  the  testator,  the  other  to  the  next  of 
kin  of  the  wife.     Cooper  v.  Cannon,  Phil.  Eq.  R  83. 

5.  Where  a  testator  recommended  one  to  the  humanity 
of  his  executors,  and  added  that  he  left  in  their  hands  the 
interest  on  a  certaiu  fund  for  the  support  so  recommended 
during  his  life,  and  upon  his  death  the  surplus,  if  any,  to  go 
over  to  another:  held,  that  the  clause  was  imperative,  and 
gave  to  such  person  a  right  to  support  under  it.  Chambers 
v.  Davis,  Phil.  Eq.  R.  152. 


LEGACY— I  315 

6.  When  it  appears,  from  other  parts  of  a  will,  that  the 
testator  understood  the  distinction  between  ''children,"  and 
issue  more  remote,  grand-children  and  great-grand-children, 
cannot  be  included  in  a  division  directed  to  be  made  among 
children.     Boylan  v.  Boylan,  Phil.  Eq.  R.  160. 

7.  Where  a  man  of  large  estate,  who  died  in  18G4,  with- 
out children,  bequeathed  to  his  sister-in-law  a  legacy  of 
$1,000,  held,  that  the  legatee  was  entitled  to  payment  in 
lawtul  currencj'  of  the  United  States ;  notwithstanding  that 
the  testator  had  on  hand  at  his  death  Confederates  notes  suf- 
ficient to  pay  that,  and  other  pecuniary  legacies.  Barham 
v.  Gregory,  Phil.  Eq.  II.  243. 

8  The  following  item  in  a  will,  "I  give  and  bequeath  to 
nephew,  E.  P.  H  ,  all  my  land,  &c;  and  the  following  ne- 
groes, Bill,  &c,  and  their  increase,  to  take  them  into  pos- 
session and  have  the  use  of  them  after  my  decease,  but  not 
to  be  at  his  disposal,  but  for  the  use  of  his  children,  heirs  of 
his  own  body,  and  no  others  whatever,"  held,  to  confine  the 
trust  for  the  children  to  the  slaves,  and  to  confer  upon  E.  P. 
H.,  an  absolute  estate  in  the  land.  Especially  as  E.  P.  H. 
was  already  in  possession  of  the  land  befoie  the  testator's 
death.     Hall  v.  Gillespie,  Phil.  Eq  E.  250. 

9.  Under  a  clause  of  a  will  giving  property  to  "  the  heirs 
and  legal  representatives  of  my  deceased  sister,"  &c.,  (fol- 
lowed by  clauses  giving  respectively  the  children  of  a  deceas- 
brother,  "  an  equal  share."  and  the  son  of  a  nephew  a  "share,") 
the  legatees  are  the  children  of  the  deceased  sister,  and  take 
per  stirpes.     Harper  v.  Sudderth,  Phil.  Eq.  R.  279. 

10.  A  devise  of  land  to  A  for  life,  and  then  to  be  sold  and 
the  money  arising  therefrom  equally  divided  between  the 
then  surviving  children  of  A," — creates  such  au  interest  in 
the  cbildren  as  vests  only  at  the  death  of  A  :  therefore,  a 
conveyance  thereof  made  during  A's  lifetime  by  the  husbands 
of  two  of  the  children  who  in  the  event  survived,  passed 
nothing,  and  their  wives  at  the  death  of  A,  were  entitled  to 
take  the  land  specifically,  or  to  have  it  sold,  as  they  might 
elect.     Grissom  v.  Pamsh,  Phil.  Eq.  K,  330. 

1 1 .  Where  a  testator  gave  land  and  slaves  to  his  daughter, 
Nancy  Waller,  for  lite,  and  then  "to  be  equally  divided  be- 
tween the  children  of  the  said  Nancy  Waller  and  my  sons 
William  and  John:"  held,  that  at  the  death  of  Nancy  the 
property  was  to  be  divided  per  capita  between  William,  John 
and  the  children  of  Nancv.  Waller  v.  Forsythe,  Phil.  Eq.  li. 
353. 


316  LEGACY— L 

12.  "  Next  of  kin,"  in  a  will,  means  nearest  of  kin.  Red- 
mond v.  Burroughs,  63  ET.  0.  E.  242. 

13.  A  testator  bequeathed  to  a  certain  boy  $2,000,  to  be 
put  at  interest  for  the  purpose  of  educating  him  ;  and  having 
survived  the  making  of  his  will  twelve  years,  the  boy  (who 
in  the  interval  had  received  little  or  no  education)  at  his 
death  was  a  married  man  of  about  twenty-four  years  of  age  : 
held,  that  the  legatee  was  entitled  to  the  legacy,  and  that  the 
fact,  that  during  his  boyhood  he  refused  to  go  to  school,  made 
no  difference.     1  bid. 

14.  A  legacy  of  $100  to  A  B,  "  to  pay  her  debts,  and  for 
her  support  as  she  needs,"  does  not  warrant  an  executor  in 
seeking  out  such  debts,  paying  them  off,  and  retaining  the 
amounts  upon  a  settlement  with  the  legatee.  Hogan  v. 
Hogan,  63  K  C.  E,  222. 

15.  By  will  made  in  1854,  A.  J.  Spivey  gave  certain  real 
and  personal  estate  to  his  wife  for  life,  and  then  to  a  niece. 
The  niece  died  in  1864,  and  Mrs.  Spivey  in  1867.  By  will, 
the  niece  gave  "  to  the  children  of  my  brother  Stephen  W. 
Britton  and  my  sister  Mary  F.  Miller,  all  of  my  property  of 
every  description,  to  them  and  their  heirs  forever."  At  the 
death  of  the  niece,  her  brother  Stephen  had  one  child,  which 
died  before  Mrs  Spivey.  A  year  or  more  after  its  death,  and 
before  the  death  of  Mrs.  Spivey,  another  child  was  born  to 
Stephen :  held,  that  the  children  of  Stephen  and  Mary  took 
per  capita.  The  estate  of  the  niece  in  possession,  was  to  be 
divided  amongst  such  of  the  children  of  Stephen  and  Mary 
as  were  in  being  at  her  death  ;  and  her  interest  in  the  estate 
of  A.  J.  Spivey,  was  to  be  divided  amongst  such  of  those 
children  as  were  in  being  at  the  death  of  Mrs.  Spivey.  The 
interest  of  the  deceased  child  of  Stephen  devolved  at  its- 
death  upon  its  father,  and  was  not  divested  out  of  him  by 
the  birth  of  the  second  child,  more  than  ten  mouths 
after  such  death.  (Eev.  Code,  ch.  38,  Eule  7.)  The  rule 
that  remainders  given  by  will  to  members  of  a  class,  vest 
only  in  such  as  compose  the  class  when  the  particular  estate 
falls  in,  applies  as  well  to  gifts  disposing  of  remainders  pre- 
viously created,  as  to  gifts  which  create  remainders.  Britton 
v.  Miller,  63  N.  G.  E.  268. 

16.  In  construing  a  will,  the  chief  object  being  to  ascer- 
tain the  meaning  of  the  testator,  words  may  be  supplied  or 
abstracted,  grammatical  arrangement  disregarded,  and  clauses 
transposed  :  therefore,  where  the  context  requires  it,  "oldest1* 
may  be  read  "  youngest.11  Tagloe  v.  Johnson,  63  N.  0.  E. 
381. 


LEGACY— I.  317 

17.  Where  a  testator  in  1861,  provided  that  uHellen " 
should  "  receive  $2,000  less  than  either  of  my  other  two 
children,"  out  of  an  estate  consisting  of  lands,  slaves,  &c: 
held,  that  the  amouut  at  present,  by  which  Helleu's  share  is 
to  be  diminished,  is  to  bear  such  proportion  to  $2,000  as  is 
borne  by  the  present  value  of  the  estate  (reduced  by  the  re- 
sults of  the  war)  to  such  value  in  1861.     Ibid. 

18.  Provisions,  that  upon  the  marriage  of  the  testator's 
second  daughter,  her  share  should  be  taken  out  and  allotted 
to  her  ;  and  it  either  of  the  three  youngest  children,  of  whom 
the  daughter  was  one,  should  die  befere  the  time  appointed 
for  the  division  of  the  estate,  the  survivors  should  inherit  her 
share, — did  not  operate  to  give  such  daughter's  share  to  the 
survivors,  upon  her  death  alter  marriage,  although  in  fact, 
there  had  been  no  division  of  the  estate.     Ibid. 

19.  When  a  testator  directed  a  division  of  his  estate  upon 
a  certain  contingency,  and  that  a  particular  share  thereof 
should  thereupon  be  regarded  as  realty :  held,  that  such 
share  was  to  be  so  considered  from  the  happening  of  such 
contingency,  even  although  there  was  no  division.     Ibid. 

20.  A  legacy  in  contemplation  of  emancipation  and  re- 
moval, to  one  who  was  a  slave  when  the  will  was  written,  is 
valid  ;  and  a  bequest  made  in  trust  for  the  removal  of  such 
slave,  with  balance  if  any  to  him,  is,  under  the  results  of  the 
war  payable  to  him  without  abatement.  Robinson  v.  Mclver, 
63  T*.  C.  B.  645. 

21.  The  expression  "lawful  heirs,"  in  a  will,  applied  to 
describe  those  who  are  to  take  a  bequest  of  personalty, 
means  such  as  take  that  sort  of  property  in  cases  of  intes- 
tacy.    Nelson  v.  Blue,  63  N.  O.  li.  659. 

22.  Personalty  given  by  a  testator  who  died  in  1854,  "  to 
be  equally  divided  among  all  ray  lawful  heirs,"  in  a  case 
where  there  were  no  lineal  descendants,  and  the  next  of  kin 
are  nephews  and  nieces  together  with  the  children  of  a  de- 
ceased nephew ;  is  to  be  confined  to  the  nephews  and  nieces. 
1  bid. 

[Note. — Since  then  aliter,  by  act  of  1862-'3,  chap.  49;  and 
act  of  Aprial  6,  18(59,  ''Estates  of  deceased  persons."] 

23.  A  will  is  to  be  construed  not  only  by  its  language, 
but  by  the  condition  of  the  testator's  family  and  estate. 
Lassiter  v.  Wood  64  N.  0.  R.  360. 

24.  Where  a  general  purpose  can  be  gathered  from  a  will, 
particular  dispositions  in  conllict  therewith,  must  give  way. 
Ibid. 

25.  A  testator  died  in  1864,  leaving  lands,  and  a  suffi- 


318  LEGACY— I. 

ciency  of  personal  estate  to  pay  debts  and  legacies;  by 
Emancipation  the  latter  afterwards  became  insufficient;  after 
giving  some  money  legacies,  and  devising  certain  lands,  &c, 
to  his  wife  for  life,  the  testator  had  given  to  others  "  all  my 
real  and  personal  estate  not  theretofere  disposed  of:"  Upon 
a  question  between  the  claimants  of  the  money  legacies,  and 
those  who  claimed  the  laud  under  the  last  provision  :  held, 
that  the  loss  subsequent  to  the  death,  fell  upon  the  legatees* 
and  not  upou  the  devisees.  Johnson  v.  Farrell,  64  N.  0.  R. 
206. 

26.  Testator  died  in  1869,  leaving  a  will,  made  in  1858r 
by  which  he  directed  "all  my  negroes,  Jnly,"  (&c,  naming 
them — seven,)  "  to  be  removed  and  settled  in  some  free 
State  ;"  and  to  meet  the  expenses  of  removal,  bequeathed  to 
his  executors  $800,  and  in  same  clause  provided :"  should 
there  be  any  such  balance  of  the  trust  fund  herein  created, 
remaining,  after  paying  the  expenses  of  the  removal  of  my 
slaves,  to  be  equally  divided  among  them;"  Two  of  the  slaves 
died,  unmarried  and  without  issue,  before  the  testator :  held, 
notwithstanding  the  slaves  were  emancipated  in  a  way  other 
than  that  anticipated  by  the  testator,  and  were  not  com- 
pelled to  remove,  they  were  entitled  to  the  legacy;  the  legacy 
being  to  individuals  of  the  class  nominatim,  and  not  to  the 
class  as  such,  the  shares  of  the  two  who  died  before  the  tes- 
tator did  not  survive  to  the  others,  but  lapsed.  Todd  v. 
Trott,  24  N"  0.  R.  280. 

27.  An  unmarried  daughter,  to  whom  was  bequeathed 
$3,000  in  money  or  bonds,  and  in  the  event  of  her  death 
without  lawful  issue,  her  legacy  was  to  be  divided,  &o,  is 
entitled  to  the  immediate  payment  of  the  whole  of  such 
legacy,  its  ultimate  devolution  being  a  question  between  her 
and  the  contingent  remainder  men,  if  they  are  such.  Camp 
v.  Smith,  68  N.  0.  R.  537. 

28.  A  testator  makes  the  following  bequest :  ''  Item  3. 
I  will  and  bequeath  that  after  my  death  all  my  remaining 
estate  and  effects,  consisting  of  notes,  accounts,  household 
and  kitchen  furniture  and  farming  utensils,  &c,  be  sold  and 
the  proceeds  thereof  be  equally  divided  among  all  my  heirs;" 
held,  that  the  testator  did  not  intend  that  his  notes  and  ac- 
counts should  be  sold  ;  they  will  be  collected ;  held  further, 
That  the  proceeds  of  the  sale  will  be  divided  into  ten  parts 
— one  to  each  of  his  six  children,  and  one  to  each  of  the 
four  grand  children.     Tuttle  v.  Puitt,  68  N".  C.  R.  543. 

29.  Where  a  testator,  who  died  in  1863,  bequeathed  that 
a  certain  slave  should  be  sold  and  the  proceeds  equally  di- 


LEGACY— I.— II.  3M> 

vided  between  two  sous  who  were  appointed  executors,  and 
one  of  the  sous  bought  the  interest  of  his  brother  in  the 
slave,  and  kept  him  until  he  was  emancipated  by  the  results- 
of  the  late  civil  war  :  It  was  held,  That  the  purchaser  of  his 
brother's  interest  had  uot  thereby  converted  the  slave,  aud 
was  uot  responsible  for  his  value  or  any  part  of  it,  but  that 
he  was  responsible  for  the  services  of  him  and  of  the  slaves 
which  he  had  kept  up  to  the  time  when  the}r  were  emanci- 
pated.    Green  v.  Green,  09  jST.  0.  li.  25. 

30.  When  a  legacy  is  given  to  a  class as  to  the  chil- 
dren of  A with  no  preceding  estate,  such  only  as  can 

answer  to  the  call  at  the  death  of  the  testator,  can  take,  for 
the  ownership  is  then  to  be  tixed,  aud  the  estate  must  de- 
volve upon  those  who  answer  the  description.  Walker  v. 
Johnston,  70  N.  C.  R.  576. 

31.  Wheu,  however,  there  is  a  preceding  life  estate,  so 
that  the  ownership  is  rilled  for  the  time,  and  there  is  no  ab- 
solute necessity  to  make  a  peremptory  call  for  the  takers  of 
the  ultimate  estate,  the  matter  is  left  open  until  the  deter- 
mination of  the  life  estate,  with  a  view  of  takiug  in  as  many 
objects  of  the  testator's  bounty  as  come  within  the  descrip- 
tion and  can  answer  to  the  call  when  it  is  necessary  for  the 
ownership  to  devolve  and  be  fixed.     Ibid. 

32.  A  legacy  to  A,  who  was  nullius  Jilliiis,  and  who  died 
intestate  without  children,  does  not  go  to  the  brothers  and 
sisters  of  his  mother,  but  escheats  to  the  University.     Ibid. 

II.     LEGACY,   WHETHER    SPECIFIC    OR    GENERAL,  AND    OF   THE    ABATEMENT    OF 

LEGACIES. 

1.  The  following  words  :  "  I  give  to  my  beloved  wife,  &c, 
the  sum  of  $20,000,  to  be  paid  &c,  in  eight  annual  instal- 
ments, the  first  to  be  due  twelve  months  after  the  date  of 
death,  and  to  be  paid  as  follows,  to- wit :  one  note  of  hand 
on  E.  S ,  for  the  sum  of  $1,000,  and  one  on  same  for  $500, 
each  of  them  bearing  interest  at  seven  per  cent.,  the  balance 
of  said  instalment  to  be  paid  in  money  at  any  time  when  my 
said  wife  may  desire  ;  the  remaining  instalments  to  be  paid 
annually  thereafter  from  the  proceeds  arising  from  the  sales 
of  the  produce  of  my  farm  :"  held,  to  create  a  general  pecu- 
niary legacy  so  far  that  it  did  not  fail  upon  a  failure  of  a  fund 
to  which  it  is  referred,  but  it  is  to  be  paid  out  of  the  general 
assets.     Mitchner  v.  Atkinson,  Phil  Eq.  It  23. 

2.  Where  a  testator  directed  that  two  of  the  shares  into 
which  he  divided  his  estate   "  shall  be  in   negro  property, 


320  LEGACY— II.— Ill— IV. 

which  shall  be  designated  by  the  executors  to  this  will :" 
held,  that  such  legacies  were  demonstrative,  and  therefore 
that  upon  the  emancipation  of  the  slaves  the  legatees  thereof 
lost  them,  and  could  not  look  to  other  parts  ot  the  State  for 
indemnity.     Johnson  v.  Osborne,  Phil.  Eq.  R.  59. 

3.  A  legacy  of  $20,000  to  the  testator's  widow, — upon  a 
survey  of  the  whole  will  and  the  state  of  his  family  and 
estate  at  the  time  of  his  death, — declared  to  be  a  charge  upon 
the  whole  estate,  and  also  upon  the  yearly  produce  of  the 
land  of  his  former  wife,  until  the  legacy  is  discharged,  or  her 
children  come  of  age ;  and  in  this  latter  respect,  such  chil- 
dren put  to  an  election  between  their  interest  under  the  will, 
and  their  interest  as  heirs  to  their  mother.  Mitchener  v. 
Atkinson,  63  N.  C.  E.  585. 

(The  former  decree  in  this  case  modified.     See  Supra,  1.) 

III.     WHETHER  VESTED,  CONTINGENT  OR  EXECUTORY. 

1.  A  legacy  of  property  "  to  be  sold  at  my  wife's  death 
aud  equally  divided  among  all  my  children,"  is  vested;  and 
therefore  the  representatives  of  such  children  as  survived  the 
the  testator  aud  died  before  the  wife,  are  entitled  to  shares. 
Falls  v.  McCulloch,  Phil,  Eq.  E.  140. 

2.  A  testator  directed  "  that  the  shares  *  *  *  which 
my  son  Presley,  &c,  are  entitled  to  under  this  will,  *  *  * 
as  well  as  their  equal  dividends  of  my  estate  not  bequeathed, 
be  retained  by  *  *  *  trustees,  &c,  for  them  during  their 
lives,  and  at  the  decease  ofauy  one  of  them  the  property 
*  *  *  to  return  to  his,  her  or  their  brothers  and  sisters: 
held,  that  upon  the  death  of  one  of  the  tenants  for  life,  her 
share  devolved  upon  such  of  her  brothers  and  sisters  are  sur- 
vived her,  together  with  the  representatives  of  such  as  had 
died  since  the  death  of  the  testator.  Also,  that  Presley's  in- 
terest in  such  share  is  not  subject  to  the  trusts  which  affects 
the  property  originally  given  to  him  Mayhew  v.  Davidson, 
Phil.  Eq.  R.  47. 

IV.     WHEN  A  CHARGE  UPON  REAL  ESTATE. 

1.  General  pecuniary  legacies  are  not  chargeable  upon 
or  to  be  preferred  to,  specific  devises  of  land,  although  the 
after  be  found  in  a  residuary  clause  which  also  incl  udes  per- 
sonalty.    Bobinson  v.  Melver,  63  IS".  O.  R.  645. 

2.  An  executor,  not  expressly  charged  with  such,  has  no 
official  duty  in  connection  with  bequests  charged  upon  land. 
Ibid. 


LEGACY— IV.— V.  321 

3.  A  testator,  dying  in  1872,  bequeathed  a  pecuniary  leg- 
acy to  M.  L.,  bis  executrix,  and  added  a  residuary  clause,  as 
follows:  "I  will  and  bequeath  to  E.  L.,  to  pay  all  rny  just 
debts,  and  to  have  all  the  balance  of  my  estate  and  papers  of 
every  kind,  after  paying  my  just  debts;"  the  executrix  received 
assets  more  than  sufficient  to  pay  her  legacy,  aud  not  sufficient 
top  ay  the  debts  of  the  estate,  excepting  what  was  bona  fide 
received  in  Confederate  currency  or  lost  without  any  fault  on 
her  part ;  held,  1,  that  her  legacy  was  not  ipsojacto  paid  and 
that  her  said  legacy  was  a  charge  on  the  real  estate  of  the 
testator,  devised  in  the  residuary  clause.  Little  v.  Hager,  67 
N.  C.  E.  135. 

4.  A  died  in  18G6,  in  the  county  of  Chowan,  leaving 
estates  in  other  counties  which  he  gave  to  different  persons, 
and  which  he  charged  with  the  payment  of  his  debts  in  the 
counties  respectively  wherein  such  estates  were  situate  and 
the  creditors  resided.  B  living  at  the  time  of  A's  death  in 
Halifax  county,  claimed  a  debt  against  A's  estate  arising 
under  a  special  contract  made  in  the  county  of  Chowan  in 
1862,  for  services  rendered  at  various  times  and  places,  in- 
cluding services  rendered  in  Halifax:  held,  that  B's  debt 
when  established  would  be  a  charge  against  the  estate  ot  A 
left  in  Halifax  county.    Garibaldi  v.  Hollowell,  68  N".  C.  E.  25. 

See  (Legacy,  as  to  what  passes  and  who  takes,  25.) 

V.  OF  DEBTS  CHARGED  UPON  LANDS. 

1.  A  testator  having  given  to  his  wife,  besides  other 
property,  one  half  of  his  land,  and  to  a  daughter  the  other 
half,  (with  certain  slaves,  emancipated  at  the  time  of  the  tes- 
tators death,)  and  having  provided  that  his  debts  should  be 
**  paid  out  of  the  funds  raised  off  the  property  given  to  his 
wife:"  held,  as  the  daughter  had  died  in  the  testator's  life- 
time, aud  the  personalty  had  been  exhausted,  that  her  lapsed 
laud  should  next  be  applied  to  the  payment  of  debts.  Galley 
v.  Holloway,  63  N.  C.  E.  84. 

2.  In  such  case,  if  it  becomes  necessary  to  resort  to  the 
land  devised  to  the  wife,  she  is  entitled,  under  Eev.  Code, 
ch.  118,  sec.  8  to  one-third  of  the  whole  of  the  realty  for 
life,  as  if  the  husband  had  died  intestate.     Ibid. 

3.  When  lands  are  devised  in  separate  parcels  to  different 
persons,  and  it  becomes  necessary  to  sell  land  to  pay  the 
debts  of  the  testator,  the  debts  are  a  charge  upon  all  the 
lands,  and  must  be  raised  out  of  them  all  according  to  their 
respective  values.     Green  v.  Green,  69  N.  C.  E.  25. 

21 


322  LEGACY— VI. 

VI.     BEQUEST  OF  THE  BESIDUE. 

1.  Where  a  residue  in  a  will  was  given  to  Johu,  Elizabeth, 
Edward  and  Robert,  "four  children  of  L.  S.  and  P.  E.  Webb," 
and  John  died  in  the  lifetime  of  the  testatrix:  held,  that  his 
share  did  not  survive  to  the  other  residuary  legatees,  but  was 
undisposed  of  and  went  to  the  next  of  kin,  Winston  v.  Webb, 
Phil.  Eq.  ft.  1. 

2.  Distinction  between  the  cases  where  there  is  a  lapse  of 
a  share  in  a  residue  given  "  to  the  children  of  a  certain  per- 
son to  be  equally  divided  between  them  "  as  a  class,  and  where 
there  is  such  a  lapse  in  a  residue  given  to  be  equally  divided 
among  such  children  nominalim,  stated  by  Battle,  J.  Ibid. 

3.  A  testator  gave  to  his  wife  money,  slaves,  &c,  and  af- 
terwards by  a  residuary  clause  directed  "  that  the  balance  of 
his  property  be  sold  and  the  money  arising  therefrom  be 
equally  divided  amongst  all  the  legatees  named  in  the  will, 
except  the  Masons  :"  held,  that  the  residuary  clause  included 
such  articles  in  the  lapsed  legacy  as  are  the  subjects  of  sales 
at  auction,  but  not  such  articles  (either  lapsed  or  otherwise 
undisposed  of,)  as  are  not  subject  of  such  sales.  That  persons 
referred  to  in  other  parts  of  the  will  only  as  "  children  of," 
&c,  are  included  in  such  residuary  clause  equally  with  per- 
sons actually  named  in  such  parts.  That  the  division  direct- 
ed by  the  residuary  clause  is  a  division  per  capita.  That  the 
word  "  legatees  "  in  the  residuary  clause  included  the  wife, 
and  that  her  share  in  the  residue  having  lapsed  does  not  go 
to  the  other  residuary  legatees,  but  is  undisposed  of  and  goes 
to  the  next  of  kin.     Hastings  v.  Earp,  Phil.  Eq.  R.  5. 

4.  A  bequest,  that  certain  chattels  "  in  the  possession  of 
my  son  Johu  shall  be  divided  between  his  children  that  may 
be  living  at  his  death,"  does  not,  by  implication,  confer  a  life 
estate  upon  John,  but  such  interest  for  life  falls  into  the  resi- 
due.    Ibid. 

5.  A  clause  in  a  will  providing — il  and  should  there  be 
anything  at  my  death  undivided,  it  is  my  will  that  it  be  sold 
and  equally  divided  amoug  my  four  sons,  after  paying  my  fun- 
eral expenses  and  all  just  debts," — in  a  case  where  the  resi- 
due consisted  of  a  considerable  amount  of  money  and  choses 
in  action,  and  an  inconsiderable  amount  of  other  personal 
property,  disposed  of  the  whole  of  such  residue.  Hogan  v. 
Hogan,  03  N.  0.  R.  222. 

(5.  A  will  is  made  in  these  words  :  I  direct  that  my  debts 
and  funeral  expenses  be  paid.  I  will  and  bequeath  to  my 
son,  Peter  A.  Summey,  twenty-five  hundred  dollars.     I  will 


LEGACY— VI.— VII.  323 

and  bequeath  to  my  wife,  Harriet  Caroline,  my  house  and 
lot  in  Lincolnton  in  which  I  now  live,  my  plantation  about  a 
mile  from  Lincolnton,  and  my  household  and  kitchen  furni- 
ture, for  and  during  her  natural  life,  and  a  sufficient  quantity 
of  property  or  money  for  a  year's  support  for  herself  and 
family.  I  also  will  absolutely  to  my  wife  the  following  slaves, 
Sophia,  &e.,  also  all  the  balance  of  my  estate  both  real  and 
personal,  with  the  remainder  after  my  wife's  death,  in  my 
house  and  lot,  plantation  and  household  and  kitchen  furni- 
ture, to  be  equally  divided  between  my  children,  Geor§e  L. 
Summey,  Caroline  Dusenbury,  Barbary  Alexander  and  Peter 
A.  Summey,  with  the  understanding  that  the  negroes  I  have 
already  given  to  my  son  George  shall  be  taken  into  account 
in  said  distribution  :  ******  held,  that  the  lead- 
ing idea  in  the  testator's  mind  was  to  make  all  of  his  chil- 
dren equal  with  an  advantage  to  his  son  Peter  A.  Summey, 
to  the  extent  of  $2,500.  Alexander  v.  Summey,  6G  K  C.  R. 
578. 

7.  The  will  having  been  made  in  September,  1864,  when 
Confederate  mouey  had  become  so  depreciated  as  not  to  de- 
serve the  name  of  a  currency ;  to  construe  the  legacy  to 
Peter  as  payable  in  Confederate  currency  would  be  to  "mock'' 
the  legatee :  therefore  held,  Peter's  legacy  must  be  estimated 
at  its  nominal  value  in  good  money.     IMd. 

8.  On  the  other  hand,  the  major  part  of  the  testator's 
estate  having  consisted  of  slaves  which  were  lost  by  emanci- 
pation, it  would  not  carry  out  the  testator's  intention  to  pay 
Peter's  legacy  in  full,  auoMeave  nothing  for  the  other  legatees  : 
therefore  held,  that  Peter's  legacy  must  abate  proportionally. 
1  bid, 

9.  The  rule  of  proportion  is :  to  ascertain  the  value  of 
the  whole  estate  at  testator's  death,  and  the  proportion  that 
Peter's  legacy  of  $2,500  bore  to  that  sum,  is  the  proportion 
it  bears  to  the  estate  as  reduced.     IMd, 

10.  After  deducting  the  sum  due  Peter  on  his  legacy,  as 
thus  abated,  the  balance  is  to  be  divided  into  three  parts, 
between  the  daughters  and  Peter,  unless  George  shall  elect 
to  bring  his  advancement  into  hotchpot,  in  which  case  the 
remainder  must  be  divided  into  four  parts.     Ibid. 


VII.     LAPSED  AND  VOID  LEGACIES. 


1.  Where  it  appeared  that  the  sole  motive  with  a  testa- 
tor, for  leaving  the  greater  part  of  his  estate  to  his  son,  was, 
that  the  latter  should  live  with  him  and  help  him  pay  his 


324  LEGACY— VII.— VIII. 

debts  and  also  treat  his  parents  "with  "  humanity  and  kind- 
ness," and  such  son  died  in  the  lifetime  of  the  testator: 
held,  that  the  devise  lapsed  ;  also,  that  the  son's  interest  in 
the  condition  was  not  "  real  or  personal  estate  "  within  the 
statute,  (Code,  ch.  119,  sec.  28,)  which  gives  such  estate  to 
the  issue  of  a  son  dying  under  such  circumstances.  Lefler 
v.  Rowland,  Phil.  Eq.  143 

2.  Upon  the  death  (before  the  testator)  of  a  residuary  lega- 
tee, {a  nephew  and  one  of  the  heirs  of  the  testator)  the  real  and 
personal  estate  given  to  him  lapses  for  the  benefit  of  the 
testator's  heirs  and  next  of  kin.  Robinson  v.  Mclver,  63 
N.  C.  R  645. 

3.  In  case  of  such  lapse,  an  annuity  charged  upon  the 
land  in  favor  of  one  of  the  heirs  will  abate  pro  rata.    Ibid. 

VIII.     OF  THE  ASSENT  OF  THE  EXECUTOK  AND  ITS  EFFECT. 

1.  The  act  of  1840,  Eevised  Code,  chap.  60,  sec.  3,  qual- 
ifies the  maxim  il  a  man  must  be  just  before  he  is  generous," 
in  case  where  the  honor,  at  the  time  of  the  gift,  retains  prop- 
erty fully  sufficient  and  available  for  the  satisfaction  of  his 
then  creditors."  But  this  modification  is  confined  to  gifts 
into  vivos,  and  in  respect  to  legacies  or  gifts  by  will  there  has 
been  no  modification  of  the  maxim.  On  the  contrary,  the 
legislation  on  the  subject  tends  to  a  strict  enforcement.  Pul- 
len  v.  HutcMns,  67  N.  C.  R.  428. 

2.  The  assent  of  an  executor  to  a  legacy,  before  the  debts 
of  his  testator  are  paid,  is  void  as  to  the  creditors,  and  if  the 
executor  commits  a  devastavit  and  is  insolvent,  the  loss  must 
fall  upon  the  legatee  rather  than  the  creditor.     Ibid. 

3.  A  legatee  cannot  avoid  responsibility,  on  the  ground 
that  the  executor  assented  and  paid  the  legacy  without  re- 
quiring a  refunding  bond.  The  omission  to  take  such  bond 
must  be  ascribed  to  collusion,  or  to  gross  negligence  on  the 
part  of  the  executor,  of  which  the  legatee  cannot  take  advan- 
tage.   Ibid. 

4.  Where  a  guardian  took  from  an  executor  his  note  in 
payment  of  a  legacy  due  his  wards,  which  was  collected  and 
placed  to  their  credit ;  it  was  held,  that  a  payment  in  a  note, 
in  the  first  instance,  did  not  release  them  from  their  obliga- 
tion to  contribute  pro  rata  for  the  benefit  of  the  creditors. 
Ibid. 


LICENSE.— LIEN  OF  LABORERS,  &c.        325 


LICENSE. 

1.  A  railway  company  having  a  right,  by  virtue  of  its 
charter,  to  locate  its  road-bed  on  a  certain  portion  of  the 
land  of  B,  he  proposes  by  letter,  that  if  the  company  will 
refrain  from  such  location,  it  may  locate  it  over  another  por- 
tion of  his  laud :  Provided  it  would  open,  grade  and  put  in 
order  a  street,  on  that  part  in  front  of  his  house  eighty-five 
feet  wide.  The  company  accept  the  proposition,  locate  their 
road-bed  accordingly,  in  December,  1869,  but  fail  to  open  the 
street,  &c,  as  late  as  September,  1871.  The  company  be- 
come insolvent  before  September,  1871,  and  execute  a  mort- 
gage of  its  property.  In  September,  1871,  B  notifies  the 
compauy  that  unless  the  condition  is  performed  within  15 
days,  he  will  repossess  himself  of  the  land  covered  by  the 
road-bed  :  held,  that  the  opening,  &c.,  of  a  street  was  not  a 
condition  precedent  to  the  exercise  of  the  right  to  locate  ; 
that  the  proposition  contained  in  B's  letter  was  not  a  mere 
license,  revocable  at  will ;  that  while  at  law  no  easement 
passed  to  the  company,  because  an  easement  in  land  can  be 
created  only  under  seal,  yet,  the  writing  by  which  the  defen- 
dant charged  himself  was  binding  within  the  statute  of 
frauds,  and  would  be  specifically  enforced,  and  between  the 
parties  and  to  protect  the  rights  of  the  licensee,  this  Court 
acting  upon  the  familiar  maxim  of  equity,  that  what  ought 
to  be  done  is  considered  as  done,  would  consider  that  a  grant 
of  the  easement  had  been  made.  W.  &  T.  R.  B.  Go.  v. 
Battle,  6C  N.  C.  R.  540. 

2.  A  license,  even  under  seal,  (if  it  be  a  mere  license)  is-. 
as  revocable  as  one  by  parol ;  on  the  other  hand,  a  license- 
by  parol,  coupled  with  an  interest  and  founded  on  a  valuable 
consideration,  is  as  irrevocable  as  if  made  by  deed.  The 
license  specified  above  is  of  the  latter  class.  The  transac- 
tion may  also  be  viewed  as  a  contract,  entitling  either  party 
to  a  specific  performance. 

See  (Railways,  14.) 


LIEN  OF  LABORERS  AND  OTHERS. 

1.  A  and  B,  in  January,  1 872,  entered  into  a  verbal  agree- 
ment, that  B  should  cultivate  A's  farm  that  year,  A  furnish- 
ing the  teams  and  B  labor :  A  was  also  to  advance  money 


326  LIEN  OF  LABOEBRS,  &c— LIMITATIONS,  &c. 

during  the  year  to  pay  the  laborers,  which  advances  were  to 
be  a  lieu  on  B's  share  of  the  crop,  and  when  the  crop  was  gath- 
ered, A  was  to  have  two-thirds  thereof  aud  B  one-third.  In 
September,  B  assigned  to  0,  the  plaintiff,  his  interest  to  the 
crop,  to  secure  a  debt,  and  during  the  same  month  died ;  A 
administered  on  B's  estate,  and  filed  a  lien  on  his  part  of  the 
crop  to  secure  the  amounts  he  had  advanced  for  labor,  and 
for  gathering  the  crop  after  B's  death :  held,  that  A,  the  de- 
fendant, was  entitled  to  be  paid  the  money  advanced  for  hous- 
ing the  crop ;  and  that  for  the  amount  paid  to  the  laborers, 
he  was  subrogated  to  their  right  of  an  incohate  lien  on  the 
crop  in  preference  to  the  claim  of  the  plaintiff.  McCoy  v. 
Wood,  70  N.  0.  E.  125. 

2.  The  lien  of  a  laborer,  who  commenced  work  in  January, 
1873,  attaching  by  virtue  of  the  provisions  of  the  Act  of 
1868-'69,  ch.  206,  sec.  9,  is  not  divested  in  favor  of  the  lien 
created  by  the  Act  of  1872-'73,  chap.  133,  sec.  1,  ratified  1st 
March,  1873,  as  that  would  be  impairing  a  vested  right,  as 
well  as  the  obligation  of  a  contract.  Warren  v.  Woodard, 
70  N.  0.  R.  382. 

See  (Assignment  in  Equity.)   (Bank  and  Bank  Notes,  18.) 


LIMITATIONS   AND   LAPSE   OF   TIME. 

1.  Where  an  answer  admitted  that  a  deed  for  land,  abso- 
lute upon  its  face,  had  been  made  as  charged  in  the  bill,  upon 
a  parol  trust  that  it  should  be  a  security  for  the  payment  of 
a  sum  of  money,  but  relied  upou  the  lapse  of  ten  years  since 
its  execution  as  a  defence  against  an  enforcement  of  such 
contract :  held,  that  as  the  complainant  had  all  the  while 
been  in  possession  of  the  laud,  the  defence  was  not  valid. 
Price  v   Gaskins,  Phil.  Eq.  R.  224. 

2.  The  land  of  a  feme  covert  having  been  conveyed  with- 
out her  privy  examination :  held,  that  there  was  no  adverse 
possession  as  against  her  issue,  until  after  the  death  of  the 
husband.     Kinkade  v.  Perkins,  63  N.  0.  R.  282. 

3.  The  statute  of  limitations,  in  actions  upon  unsealed 
contracts,  has  been  suspended  since  September  1st,  1861,  and 
by  present  legislation,  is  to  remain  so  until  January  1st,  1870. 
tjohnson  v.  Winsloiv,  N.  C.  R.  552. 

4.  The  act  of  February  10th,  1863,  (ch.  34,)  by  suspend- 
ing the  statute  of  limitations,  prevented  a  possession  of  land 
extending  from  October  15th,  1845,  to  January  16th,  1868, 


LIMITATIONS  AND  LAPSE  OF  TIME.       327 

from  barring  the  State  under  the  act  giving  such  operation 
to  tiventy-one  years'  possession  with  color  of  title.     Howell  v. 

Bute,  64  N.  0.  R.  446.  «,."■»♦ 

5.  The  statute  of  limitations  was  suspended  in  this  btate 
by  different  acts  of  the  Legislature  from  the  11th  May,  1861, 
to  the  1st  day  of  January,  1870,,  and  hence  a  parol  contract 
which  was  not  barred  by  the  said  statute  on  the  said  first 
mentioned  date  could  not  have  been  so  prior  to  the  1st  day 
of  January,  1870.     Plott  v.  W.  N.  G.  R  R  Co ,  65  N.  0.  R.  74. 

6.  The  14th  section  of  the  act  of  March,  1866,  ch.  17, 
entitled  an  "Act  to  change  the  jurisdiction  of  the  courts  and 
rules  of  pleading  therein,"  which  repealed  the  act  of  11th 
September,  1861,  and  14th  December,  1863,  which  had  sus- 
pended the  statutes  of  limitations;  did  not  repeal  the  act  ot 
21st  February,  1866,  ch.  50,  which  had  suspended  the  opera- 
tion of  these  statutes  until  the  1st  of  January,  1867,  so  that 
there  was  no  statute  of  limitations  in  operation  during  the 
year  1866.     Smith  v.  Rogers,  65  N.  0.  R  181. 

7.  A  promissory  note  barred  by  the  statute  of  limitations 
is  not  revived  by  an  offer  to  pay  in  Confederate  currency,  or 
bank  bills.     Simonton  v.  Clark,  65  N.  0.  R.  525. 

8.  To  repel  the  statute  of  limitations  there  must  be  such 
facts  and  circumstances  as  show  that  the  debtor  recognized 
a  present  subsisting  liability,  and  manifested  an  intention  to 
assume  or  renew  the  obligation.     Ibid. 

9.  Inaction  on  an  account  due  1st  January,  1861,  to 
which  the  statute  of  limitations  is  pleaded,  the  time  during 
which  the  statute  is  to  run,  must  be  computed  from  the 
said  1st  day  of  January,  to  the  20th  day  of  May,  1861,  and 
then  from  the  1st  day  of  January,  1870.  till  the  day  the  sum- 
mons was  issued.     Williams  v.  Williams,  70  N.  0.  R.  189. 

10.  The  right  of  action  accruing  upon  the  following 
instrument:  "This  is  to  show  that  half  the  hire  of  Randall, 
hired,  to  Larkin  Brooks  is  Moses  Jones,  December  29, 1853," 
did  not  arise  until  a  demand  and  refusal,  at  which  time  the 
statute  of  limitation  began  to  run.  Jones  v.  Woods,  70 
N.  0.  R.  447.  a  .    ^T 

11.  A  bond  for  the  payment  of  money  executed  in  May, 
I860,  by  the  principal  and* his  sureties  is  by  the  16th  sec.  of 
the  C.  C  P.,  exempted  from  the  operation  of  the  statute  of 
limitations  as  contained  in  the  sees.  31  and  34  of  the  0.  0. 
P.    Knight  v.  Braswell,  70  N.  0.  R.  709. 

12.  Where  a  bond  is  made  payable  "  with  interest  from 
date,  the  interest  to  be  paid  annually,"  the  interest  becoming 
due  at  the  end  of  each  year,  is  not  barred  by  any  statute  ot 
J  imitation  that  does  not  bar  a  suit  on  the  bond.     Ibid. 


328         LIMITATIONS,  &c— LIS  PENDENS. 

See  (Attachment — By  the  death  of  parties,  1.)  (Attach- 
ment— Original  Attachment,  10.)  (Bankruptcy,  20.)  (Cor- 
poration, 8.)  (Counties  and  County  Commissioners,  12.) 
(Eailways,  2.)  (Surety  and  Principal,  19.)  (Widow — Of  her 
Dower,  10.) 


LIS  PENDENS. 

1.  Where  a  bill  recited  that  a  petition  for  a  sale  of  land 
had  been  hied  and  was  still  pending  in  the  same  court,  and 
that  the  money  was  still  due  by  the  purchaser,  and  prayed 
that,  inasmuch  as  the  price  at  such  sale  was  at  an  extrava- 
gant rate,  being  based  upon  Confederate  paper  money,  the 
purchaser  and  his  sureties  might  be  decreed  to  pay  its  rea- 
sonable value,  &c:  held,  that  as  this  relief  was  no  other  than 
might  have  been  had  in  the  petition  then  pending,  the  bill 
would  not  be  entertained  ;  also,  that,  as  the  bill  showed  upon 
its  face  that  the  relief  might  have  been  had  in  the  former 
proceeding,  the  objection  was  well  taken  by  demurrer.  Rogers 
Y.Holt,  Phil.  Eq.E.  108. 

2.  Where  a  complainant  can  obtain  the  money  desired 
under  a  bill  already  filed  by  him,  it  is  improper  to  commence 
another  suit  therefor.     Whitaker  v.  Bond,  Phil.  Eq.  E.  229. 

3.  Where  it  appears  upon  the  face  of  a  bill  (or  petition 
having  the  requisites  of  an  original  bill)  that  the  relief 
sought  may  be  had  in  a  cause  already  pending,  the  bill  is 
demurrable  and  will  be  dismissed.  Gee  v.  Sines,  Phil.  Eq. 
E.  315. 

4.  Such  bill  will  not  be  treated  as  notice  of  a  motion  in 
the  original  cause-     Ibid. 

5.  A  lis  pendens  being  notice  to  all  the  world,  a  sale  of 
land  which  is  the  subject  of  a  suit  in  equity,  before  a  dev  ree 
is  rendered,  will  not  be  regarded,  and  the  land  may  be  sold 
under  an  execution  issued  upon  the  decree  when  rendered. 
Baird  v.  Baird,  Phil.  Eq.  E.  31 7. 

6.  In  such  case  a  supplemental  bill  to  enforce  the  decree 
in  the  original  suit,  making  the  purchaser  of  the  land  a  party,, 
is  unnecessary,  and  will  be  dismissed  upon  demurrer.     Ibid. 

7.  The  bill  of  equity  given  to  creditors,  "without  obtain- 
ing a  judgment  at  law,"  by  the  ordinance  of  June  16th,  1800, 
sec.  18,  creates  a  right,  whether  it  be  a  lien  or  merely  a  Us 
pendens,  in  favor  of  such  creditors,  from  the  time  of  filing, 
which  is  not  disturbed  by  the  fraudulent  vendor's  subse- 
quent bankruptcy.     Carr  v.  Fearington,  63  N.  C.  E.  560*. 


LOTTERY.— MALICIOUS  PROSECUTION.    320 


LOTTERY. 

General  words,  in  an  act  of  incorporation,  do  not  authorize- 
the  Company  to  do  acts  which  by  the  public  law  are  indicta- 
ble ;  plain  and  positive  words  are  necessary  to  convey  such  a 
privilege;  therefore,  the  charter  of  "  the  North  Caroliua  Real 
and  Personal  Estate  Agency,"  in  providing  that  "  the  said 
agency  shall  have  the  right  and  power  to  sell  and  dispose  of 
any  real  or  personal  property  placed  in  their  hands  for  sale,  in 
any  mode  or  manner  the  agency  shall  deem  best,^  (Private  acts 
of  18G8-'9,  c.  42,)  did  not  authorize  the  Agency  to  sell  prop- 
erty by  means  of  a  lottery.     State  v.  Krebs,  64  N.  0.  R.  604. 


MALICIOUS  PROSECUTION. 

1.  In  an  action  for  malicious  prosecution  by  a  State's  war- 
rant for  larceny,  it  appeared,  that  the  warrant  had  been  a 
joint  one,  against  the  plaintiff  and  one  Tobe, — that  the  preli- 
minary oath  made  by  the  defendant  was  to  the  contents  of  the 
warrant,  which  contained  the  usual  recital, — that  the  defen- 
dant was  a  man  of  more  than  ordinary  intelligence, — that  the 
warrant  was  drawn  by  his  friend,  who  had  come  to  the  mag- 
istrate with  him,  and  who  afterwards  served  it, — that  in  the 
conversation  with  the  magistrate  preliminary  to  the  taking 
out  of  the  warrant,  the  defendant  did  not  charge  the  plaintiff 
with  stealing  the  article,  but  charged  Tobe,  his  own  servant, 
with  stealing  it,  and  the  plaintiff  with  harboring  Tobe, — that 
upon  the  trial  of  the  warrant,  some  sharp  words  having  been 
used  by  the  plaintiff  in  regard  to  the  charge,  the  defendant 
said  that  he  did  charge  him  with  stealing ;  and  that  the  de- 
fendant, on  the  trial,  assisted  in  conducting  the  examination 
of  the  witnesses  :  held,  that  evidence  going  to  show  that  at 
the  time  of  taking  out  the  State's  warrant,  the  defendant  had 
malice  towards  Tobe,  was  competent,  as  going  to  show  the 
state  of  his  mind  at  that  time  towards  the  plaintiff;  that  the 
Judge  was  warranted  in  instructing  the  jury  that  if  they  be- 
lieved the  evidence,  the  defendant  had  Unoivingly  prosecuted 
the  plaintiff  for  larceny;  that  he  was  warranted  in  declining 
to  instruct  them,  that  it  they  believed  that  the  defendant  did 
not  mean  by  his  affidavit  to  charge  the  plaintiff  with  stealing, 
he  could  not  be  liable;  and  that  he  was  also  warranted  in  de- 
clining to  instruct  them,  that  if  the  defendant  stated  the  facts 


330  MANDAMUS 

to  the  magistrate,  such  facts  not  constituting  a  criminal  of- 
fence, and  the  magistrate  issued  the  warrant  upon  such  state- 
ment, the  defendant  would  not  be  liable.     Thomas  v.  Norris, 

64  N.  0.  E.  780. 


MANDAMUS. 

1.  One  who  applies  for  a  mandamus  to  compel  his  induc- 
tion into  an  office,  must  show  affirmatively  that  he  is  entitled 
to  hold  such  office,     Worthy  v.  Barritt,  63  N.  0.  E.  199. 

2.  A  creditor  of  a  count}',  (by  coupons  upon  county  bonds 
issued  in  1858,)  applied  for  a  mandamus  to  compel  the  levy 
of  taxes  for  the  satisfaction  of  his  debt :  held,  that  the  rem- 
edy was  a  proper  one.  Peg  ram  v.  Comm'rs  of  Cleaveland,  64 
N.  0.  E.  557. 

3.  Quare,  whether  a  mandamus  can  be  revived  in  any 
case.     Carson  v.  ComnVrs  of  (Ueaveland      64  N.  0.  E.  566. 

4.  The  Board  of  Commissioners  of  a  county  have  a  per- 
petual existence,  continued  by  members  who  succeed  each 
other,  and  the  body  remains  the  same,  notwithstanding  a 
change  in  the  individuals  who  compose  it.  Hence,  when  a 
writ  of  mandamas  is  obtained  against  a  Board  of  Commis- 
sioners, and  there  is  a  change  in  the  individual  members 
between  the  time  when  the  writ  was  ordered,  and  when  it  is 
served,  those  who  compose  the  Board  at  the  time  of  service 
must  obey  it.  Pegram  v.  Comm'rs  of  Cleaveland,  65  N.  C.  E. 
114. 

5.  A  plaintiff  who  has  obtained  a  judgment  against  a 
county  is  not  entitled  to  an  execution  against  it.  Ips  rem- 
edy is  by  a  writ  of  mandamus  against  the  Board  of  Commis- 
sioners of  the  county,  to  compel  them  to  levy  a  tax  for  the 
satisfaction  of  the  judgment.  Gooch  v.  Gregory,  55  IS".  C.  E. 
142. 

6.  The  8th  section  of  the  Ordinance  of  the  Convention  of 
1868,  having  provided  that,  when  the  President  and  Chief  En- 
gineer of  the  North-western  North  Carolina  Eailroad  Com- 
pany should  have  complied  with  certain  terms  in  respect  to 
the  first  division  of  the  said  road,  the  Governor  should  direct 
that  the  Public  Treasurer  should  make  a  loan  to  the  com- 
pany by  issue  of  a  certain  amount  of  State  bonds,  and  the 
terms  having  been  complied  with,  it  was  held,  that  the  com 
pany  was  entitled  to  have  a  peremptory  mandamus  to  compel 
the  Treasurer  to  issue  the  bonds,  notwithstanding  the  subse- 


MANDAMUS.  331 

quent  legislation  contained  in  the  acts  of  1868-9,  cbap  32,  of 
1869-'70,  chaps.  71  and  100,  as  all  those  acts  taken  together 
left  the  Ordinance  above  mentioned  in  full  force  and  effect. 
North-western  N.  C.  B.  R.  Co.  v.  Jenkins  05  N.  0.  E.  172. 

7.  Where  a  party  has  established  his  debt  against  a 
county  by  judgment,  and  payment  cannot  be  enforced  by  an 
execution,  he  is  entitled  to  a  writ  of  mandamus  against  the 
Board  of  Commissioners  of  said  county,  to  compel  them  to 
levy  a  sufficient  tax  to  pay  off  and  discharge  his  said  judg- 
ment.    Lutterloh  v.  Comers  of  Cumberland,  65  N.  C  R.  403. 

8.  There  is  no  provision  in  the  0.  0.  P.  regulating  the 
proceedings  in  writs  of  mandamus,  and  in  such  cases  "  the 
practice  heretofore  in  use  may  be  adopted  so  far  as  may  be 
necessary  to  prevent  a  failure  of  justice."  0.  C.  P.,  sec.  392. 
(Bat.  Kev.,  ch.  17,  sec.  392.)     Ibid. 

9.  This  writ  can  only  be  used  by  the  express  order  of  a 
court  of  superior  jurisdiction,  and  is  not  embraced  in  the 
rule  established  in  Tate  v.  Powe,  64  N.  0  ,  644,  which  marks 
out  the  distinction  between  civil  actions  and  special  proceed- 
ings.    Ibid. 

10.  Where  the  plaintiff's  demand  may  involve  disputed 
facts,  the  proper  application  is  for  an  alternative  mandamus. 
Where,  however,  the  plaintiff's  claim  is  based  upon  a  judg- 
ment, then  the  proper  process  is  a  peremptory  mandamus. 
Ibid, 

11.  Whether  the  General  Assembly  possesses  the  power 
to  forbid  the  board  of  commissioners  of  a  county  to  levy  and 
collect  a  tax  to  pay  an  existing  debt  of  the  county,  when 
such  board  is  commanded  to  do  so  by  the  order  of  a  Superior 
•Court  having  jurisdiction  of  the  matter,  and  whether  in  such 
case  the  board  must  take  the  responsibility  of  deciding  this 
question,  so  that,  should  the  statute  be  held  constitutional, 
the  return  would  be  responsive  and  sufficient — otherwise  the 
persons  composing  the  board  subject  themselves  to  line  and 
imprisonment  for  contempt,  quere.  Ledbetter  v.  Comers  of 
Chatham,  06  N.  C  R.  *80. 

12.  The  statute,  however,  of  1871,  Acts  of  1870-'71, 
chap.  114,  forbidding  the  Board  of  Commissioners  of  Chat- 
ham county  from  levying  or  collecting  any  other  tax  except 
for  the  accruing  current  expenses  of  the  county,  is  relieved 
from  the  imputation  of  being  unconstitutional,  tor  while  for* 
bidding  the  levying  of  a  tax,  the  scope  and  effect  of  it  is  to 
empower  the  board  to  raise  the  necessary  amount  to  dis- 
charge the  liabilities  of  the  county,  outstanding  at  the  time 
of  the  ratification  of  the  act,  by  issuing,  and  selling  in  the 


332  MANDAMUS. 

market,  coupon  bonds,  and  a  mandamus  lies  to  compel  the 
issuing  aud  sale  thereof  to  pay  debts  outstanding  when  the 
act  was  passed.     Ibid. 

13.  The  general  rule  is,  that  no  return  to  a  peremptory 
mandamus  is  sufficient  except  that  it  has  been  obeyed,  but 
if  a  statute  be  enacted,  after  such  peremptory  order,  for- 
bidding obedience  and  making  obedience  impossible,  such 
new  matter  will,  of  necessity,  constitute  a  sufficient  return, 
provided  the  statute  is  constitutional  and  within  the  law- 
making power.     Ibid. 

14.  Per  Pearson,  C.  J.,  arguendo:  If  the  only  proper  con- 
struction of  the  statute  is  that  the  creditors  of  the  county 
are  put  to  the  alternative  of  accepting  coupon  bonds,  or  be 
without  remedy  because  the  board  are  forbidden  to  levy  or 
collect  any  tax  except  for  accruing  current  expenses  of  the 
county,  thus  making  a  direct  conflict  of  power  between  the 
Judge  of  the  Superior  Court  and  the  Generral  Assembly,  as- 
assumed  by  the  counsel  for  each  party,  there  would  be  much 
force  in  the  objection  that  it  impairs  the  obligation  of  con- 
tracts.    1  bid. 

15.  But  this  construction  is  too  narrow,  aud  the  one  first 
indicated  is  the  true  one,  not  only  as  warranted  by  the  terms 
of  the  act,  but  by  the  well  settled  principle  governing  the 
construction  of  statutes,  namely,  that  where  a  statute  admits 
of  two  constructions,  one  of  which  is  consistent  with  the  Con- 
stitution, and  the  other  is  questionable  as  violative  of  good 
faith  and  as  tending  to  impair  the  obligation  of  contracts — 
in  other  words,  if  a  thing  may  be  done  in  a  rightful  way,  or 
in  a  wrongful  way,  it  shall  be  presumed  to  have  been  done  in 
the  rightful  way.     Ibid. 

16.  In  this  case,  on  the  coming  in  of  the  return,  setting 
forth  the  provisions  of  the  statute  under  consideration,  the 
court  below  should  have  modified  the  order  so  as  to  require 
the  board  to  raise  the  money  in  the  mode  provided,  for  the 
act  being  constitutional  protected  the  board  from  the  charge 
of  contempt,     Ibid. 

17-  Ordinarily  the  successful  party  is  entitled  to  costs  of 
this  court,  but  they  are  refused  in  this  case  for  peculiar  rea- 
sons.    J  bid. 

18.  Whether  a  mandamus  can  be  used  to  try  the  title  to  an 
office  under  any  circumstances,  queref  But  not  being  pro- 
vided for  by  the  C.  0.  P.,  it  must,  by  virtue  of  sec.  392,  C. 
C.  P  ,  be  governed  by  the  former  practice,  aud  hence,  must 
be  moved  for,  and  be  made  returnable  in  term  time.  Hoiv- 
erton  v.  Tate,  66  N.  C.  E.  231. 


MANDAMUS.  333 

19.  Mandamus  is  not  the  appropriate  remedy  to  try  title 
to  an  office.     Mott  v.  Tate,  M  N.  0.  R.  214. 

20.  Mandamus  will  not  lie  to  compel  the  Treasurer  to  pay 
money  on  any  claim  against  the  State,  until  the  same  has 
been  passed  upon  and  a  warrant  issued  by  the  Auditor  for 
that  purpose.     Bayne  v.  Jenkins,  66  N.  0.  R.  356. 

21.  When  the  Legislature  has  forbidden  a  warrant  to  be 
issued,  claimant  must  apply  to  that  body  for  redress,  or  insti- 
tute proceedings  in  the  Supreme  Court.     Ibid. 

22.  To  an  action  by  mandamus  instituted  against  the 
Justices  of  a  county,  Commissioners  elected  under  the  Con- 
stitution cannot  be  substituted  as  parties,  and  this  error  is 
not  waived  by  answer,  but  may  be  taken  advantage  of  at  any 
stage  of  the  proceedings.  Ihomas  v.  Commissioners  of  Car- 
teret, 66  N.  C.  R.  322. 

23.  A  mandamus  against  the  Commissioners  of  a  county, 
should  run  against  them  as  "  a  board,"  and  not  against  the 
individuals  comprising  such  board.     Ibid. 

24.  Where  a  mandamus  was  issued,  commanding  the 
Board  of  Commissioners  of  a  county  to  levy  a  tax  sufficient 
to  pay  the  plaintiff's  claim  against  the  county,  and  a  rule  was 
afterwards  served  upon  them  to  show  cause  why  they  should 
not  be  attached  for  disobedience  to  the  order :  held,  that  an 
answer  to  the  rule,  that  they  had  levied  a  sufficient  tax,  and 
placed  the  lists  in  the  hands  of  the  Sheriff,  was  responsive 
and  the  rule  ought  to  be  discharged.  Johnson  v.  Board  of 
Commissioners  of  Cleveland,  67  N.  C.  R.  101. 

25.  The  Justices  of  a  county  having  failed,  for  many 
years,  to  levy  a  tax  to  pay  the  interest  on  bonds  issued  by  the 
county  to  aid  in  building  a  railroad,  the  Board  of  Commis- 
sioners should  not  be  required  at  the  suit  of  the  creditors  to 
raise  in  one  year,  by  taxation,  the  whole  amount  of  the  inter- 
est in  arrear ;  but  in  the  case  of  a  mandamus  ordering  them 
to  levy  a  tax  and  pay  the  interest,  it  was  a  prudent  exercise 
of  a  discretion  to  raise  part  by  taxation,  aud  issue  county 
bonds  in  order  to  raise  the  remainder.     Ibid. 

26.  Semble  that  proceedings  by  mandamus  against  the 
commissioners  of  a  county  should  be  instituted  in  the  Supe- 
rior Court  of  their  own  county.     Ibid. 

27.  If  a  note  be  made  payable  at  a  particular  time  and 
place,  a  demand  at  the  time  and  place  need  not  be  averred 
and  proved  in  an  action  by  the  holder  against  a  maker.  It 
is  otherwise,  if  it  is  payable  on  demand  at  a  particular  time 
and  place.  Alexander  v.  Board  Commisssoner  of  McDowell, 
67  N.  C.  R  330. 


334  MANDAMUS.— MANSLAUGHTER. 

28.  In  an  action,  however,  against  the  Board  of  Commis- 
sioners of  a  county  a  demand  is  necessary,  without  regard  to 
the  fact  whether  the  claim  is  expressed  to  be  payable  at  any 
particular  time  or  place,  and  in  a  mandamus,  "  the  writ  should 
show  expressly,  by  the  averment  of  a  demand  and  refusal,  or 
an  equivalent,  that  the  prosecutor,  before  his  application  to 
the  court,  did  all  in  his  power  to  obtain  redress."    Ibid. 

29.  It  would  seem  that  in  an  action  against  the  Commis- 
sioners of  a  county,  the  action  should  be  brought  in  the 
county  in  which  they  are  officers,  0.  0.  P.,  sec.  67.     Ibid. 

30.  Where  an  act  of  the  legislative  branch  of  the  gov- 
ernment directs  an  executive  officer  to  do  a  specific  act,  which 
does  not  involve  any  official  discretion,,  but  is  merely  ministe- 
rial, as  to  enter  a  specific  credit  upon  an  account,  and  the 
officer  refuses  to  do  so,  a  mandamus  will  be  ordered.  Ral- 
eigh &  Augusta  A.  L.  R.  R.  Co.  v.  D.  A.  Jenkins,  68  N.  C.  R. 
502. 

31.  When  a  debt  against  a  municipal  corporation  has  been 
reduced  to  judgment  in  a  court  of  competent  jurisdiction,  a 
peremptory  mandamus  may  be  properly  asked  for,  although 
such  judgment  is  dormant.  Webb  v.  Comni'rs  of  Beaufort, 
70  N.  C.  R.  307. 

32.  Where  a  plaintiff  holds  a  debt  against  a  county,  con- 
tracted since  the  adoption  of  the  Constitution  for  the  ordina- 
ry and  necessary  expenses  of  the  county,  and  where  the 
county  has  the  means  to  pay  the  debt,  such  plaintiff  is  enti- 
entitled  to  a  peremptory  mandamus,  and  it^was  error  in  the 
Court  to  refuse  it."  Vzzell  v.  Commissioners  of  Franklin, 
70  N.  C  R.,  564. 

33.  A  creditor  of  a  county  cannot  be  compelled  either  by 
the  Legislature  or  by  the  Board  of  Commissioners  to  "bond" 
his  debt  and  wait  five  years  for  its  ultimate  satisfaction ;  such 
creditor  is  entitled  to  a  peremtory  mandamus.  Edwards  v. 
Comm'rs  of  Wilkes,  70  K  C.  R.  571. 

See  (Office  and  Officer,  27.) 


MANSLAUGHTER.  . 
See  (Homicide.) 


MARSHALING.— MILITARY  ORDEKS.— MILLS.  335 

MARSHALING. 

A  prayer  to  marshal  certain  funds  will  be  refused  where 
the  paramount  charge  is  upon  one  fund  only.  Young  v. 
Davidson,  Phil.  Eq.  R.  261. 


MILITARY  ORDERS. 

1.  The  Military  Order,  No.  10,  sec.  2,  (April  11th,  1867,) 
does  not  forbid  the  courts  of  the  State  to  hear  and  try  causes 
and  render  judgments  and  decrees  ;  but  it  operates  in  anal- 
ogy to  injunctions,  against  executions  after  judgment. 
Broughton  v.  Haywood,  Pbil.  L.  R.  380. 

2.  There  is  nothing  in  General  Sickles'  Order,  No.  10,  or 
in  the  Acts  of  1865-'66,  ch.  50,  and  1866->67,  ch.  17,  to  pre  J 
vent  a  decree  for  money  made  at  the  Superior  Court  of  Chat- 
ham, Spring  Term,  I860,  (3d  Monday  of  March,)  from  be- 
coming dormant  before  the  13th  day  of  July,  1808  ;  there- 
fore, an  execution  which  issued  at  the  latter  date  upon  such 
decree,  is  irregular,  and  should  be  set  aside.  Mclntyre  v. 
Guthrie,  64  N.  C.  R.  104. 

3.  A  bond  executed  April  25th,  1866,  although  given  in 
satisfaction  of  a  previous  bond  executed  December  1st,  1860, 
constitutes  a  cause  of  action  arising  subsequent  to  May  15th, 
1865,  within  the  meaning  of  General  Order,  No.  10,  issued 
April  11th,  1867 ;  therefore,  a  return  upon  an  execution  by 
a  sheriff  to  May  Term  1867, — "Levied,  &c;  no  sale,  in  obe- 
dience to  Order  No.  10,  from  Daniel  E.  Sickles,"  was  not  a 
due  return.     Isler  v.  Kennedy,  64  N.  C.  R.  540. 

4.  The  military  order  of  Gen.  Sickles,  forbidding  corpo- 
ral punishment,  could  not  have  had  any  greater  effect  than 
merely  to  suspend  the  law  ;  and  as  soon  as  the  order  ceased, 
the  law  was  restored,  to  be  administered  as  before.  State  v. 
Kent,  65  N.  C.  R.  311. 


MILLS. 

1.  Defendants  have  a  right  to  appeal  from  an  interlocu- 
tory order  of  the  Lounty  Court  appointing  four  freeholders 
to  view,  lay  off  and  value  land  for  mill  site  under  Rev.  Code, 
ch.  71,  sec.  1.     Minor  v.  Harris,  Phil.  L.  R.  322. 


336  MILLS. 

2.  The  rule  upon  this  subject  contained  in  the  Revised 
Statutes,  and  administered  in  Brooks  v.  Morgan,  5  Ire.  481, 
Las  been  reversed  by  the  provisions  of  the  Eevised  Code,  ch. 
4,  sec.  1.     Ibid. 

3.  Instructions  to  a  jury,  that  if  a  plaintiff  sustains  no 
injury  from  the  ponding  of  water  upon  his  mill  wheel,  still 
he  is  entitled  to  nominal  damages,  are  correct.  Little  v. 
Stariback,  03  K  0  R.  285. 

4.  Where  a  petition  under  the  statute  (Rev.  Code,  ch.  71, 
sec.  8,)  for  damages  caused  by  the  erection  of  a  mill  upon 
the  stream  below,  described  it  as  a  "  grist  mill ;"  without 
calling  it  a  public  mill,  or  a  grist  mill  grinding  for  toll,  held, 
to  be  sufficient.     Ibid. 

5.  The  mere  raising  ot  a  stream  within  its  banks,  al- 
though it  is  not  thrown  out  of  them,  is  sufficient  to  support 
an  action  for  injury  to  land  through  which  it  runs-     Ibid. 

6.  Where  successive  dams  at  a  certain  point  upon  a  creek 
had  thrown  the  water  back  upon  the  plaintiff's  land  to  a 
certain  extent  for  more  than  twenty  years,  and  after  that  a 
new  dam,  no  higher  than  the  former  dams,  but  tighter  than 
they,  erected  six  feet  lower  down  the  creek,  filled  up  the 
bed  of  the  stream  with  sand,  and  sobbed  the  plaintiff's  land 
to  a  considerably  greater  extent  than  before,  although  it  did 
not  pond  the  water  further  back :  held,  that  the  easement 
obtained  by  the  twenty  years'  possession,  upon  the  maxim 
tantum  prfescriptum  quantum  possbssum,  did  not  protect  the 
owner  of  the  dam  from  liability  on  account  of  the  new  in- 
jury.    Powell  v.  Lash,  64  N.  0.  R.  456. 

7.  The  jury  required  to  try  issues  joined  in  proceedings 
for  damages  caused  by  mills,  have  no  right  to  assess  such 
damages ;  these  are  assessed  by  Commissioners,  to  be  ap- 
pointed by  the  Judge,  in  case  the  jury  finds  the  issue  in 
iavor  of  the  plaintiff.     Sumner  v.  Miller,  64  N.  0.  R.  688. 

8.  It  is  not  necessary  that  all  the  Commissioners  ap- 
pointed uuder  the  act  of  April,  1869,  chap.  158,  entitled  "An 
Act  relating  to  special  procedure  in  cases  of  mills,"  should 
sign  the  report  required  to  be  made,  a  majority  being  suffi- 
cient     Austin  v.  Helms,  65,  N\  C.  R.  560. 

9.  In  a  suit  for  damages,  for  an  injury  to  plaintiff's  land 
by  ponding  water  upon  it,  the  defence  relied  on  being  an  ease- 
ment by  prescription  to  pond  water  back  by  the  erection  of  a 
new  dam  in  place  of  an  old  one,  and  the  plaintiff  replying  to 
such  defence,  that  the  new  dam  was  higher  and  tighter  than 
the  old  one,  and  that  thus  the  easement  was  exceeded  :  held, 
that  the  issue  submitted  to  the  jury  as  to  the  height  of  the 


MILLS.-MINES  -MISCEGENATI0N.-M1STAKE.    337 

new  clam,  and  as  to  whether  from  such  height  over  the  height 
of  the  old  dam  the  plaintiff  was  endamaged,  are  not  suffi- 
ciently responsive  to  the  allegation  and  denial  in  complaint 
and  answer,  and  that  the  jury  should  find,  whether  or  not 
the  defendant  has  exceeded  his  easement,  and  ponded  water 
hack  further  than  he  had  a  right  to  do  by  prescription. 
Jenkins  v.  Conly,  70  y.  0.  E.  353. 


MINES. 

In  a  suit  involving  the  title  to  mining-property,  a  receiver 
is  not  to  be  appointed  unless  the  parties  in  possession  are  in- 
solvent, or  are  injuring  the  property  by  the  management. 
Carter  v.  Hoke,  64  N.  C.  E.  348. 


MISCEGENATION. 

The  provisions  of  the  Act.  (Eev.  Code,  ch.  68,  sec.  7,)  de- 
claring intermarriages  between  whites  and  persons  of  color  to 
be  void,  are  still  in  force  in  this  State;  not  having  been  af- 
fected by  recent  changes  of  the  Constitution  of  the  State,  or 
of  the  United  States  ;  or  by  the  Civil  Eights  Bill.  State  v. 
Hairston  d-  Williams,  S.  P.  State  v.  Beinliart  ct-  Love,  63 
1S\  C.  E.  451  and  547. 


MISTAKE. 

1.  In  a  case  where  there  was  a  question  between  the 
parties  as  to  the  kind  of  currency  in  which  a  contract  for 
money  was  solvable,  and  upon  taking  an  account  it  appeared 
that  the  debtor  had  overpaid  the  debt:  held,  that  he  could 
not  recover  the  surplus  from  the  creditor,  as  money  paid  by 
mistake.     Pear  sol  v.  Mayers,  64  N.  C.  E.  541). 

2.  Under  the  new  Constitution,  and  since  the  adoption 
of  the  C  C.  P.,  a  civil  action  may  be  brought  upon  a  note 
without  seal,  and  an  allegation  may  be  made  that  the  note 
was  intended  to  be  under  seal,  but  that  the  seal  was  omitted 
by  accident  or  mistake,  and  upon  sufficient  proof  the  accident 


338  MISTAKE.— MORTGAGE. 

or  mistake  may  be  corrected,  and  a  recovery  had  accordingly  ► 
McCown,  Adm'r.  v.  Sims,  69  N.  0.  E.  159. 

3.  In  an  action  involving  the  correcting  of  a  mistake  in 
omitting  to  put  a  seal  to  a  note,  the  circumstances  that  the 
note  was  taken  by  way  of  accommodation,  for  another,  to 
which  the  seal  was  attached,  that  the  words  "  witness  my 
hand  and  seal,"  were  in  the  note,  and  that  the  parties  were 
a  sister  and  a  brother  of  the  half-blood  living  in  the  same 
house  on  terms  of  the  most  intimate  family  relations,  are  all 
admissible  in  evidence  tending  to  prove  that  a  seal  was  in- 
tended to  be  put  to  the  note,  but  was  omitted  by  accident  or 
mistake.     Ibid. 

4.  Where  the  allegations  in  a  complaint,  (praying  the 
correction  and  re-execution  of  a  deed,)  that  the  fee  simple 
in  the  land  was  sold  and  brought  a  good  price,  and  that  by 
mistake  the  word  "  heirs"  was  omitted  and  the  seal  of  the 
(Jlerk  and  Master  was  not  affixed,  are  not  controverted  in 
the  answer,  or  where  the  answer  as  to  such  allegations  is  so 
obscure  and  meaningless  as  to  have  no  legal  effect,  and  to 
amount  only  to  a  "sham  plea,"  the  presiding  Judge  was 
right  in  refusing  to  submit  the  issues  of  fact  to  the  jury,  and 
in  adjudging  that  the  correction  should  be  made.  Long  v. 
Fish,  70  N.  C  E.  674. 

See  (Fraud — In  conveyances,  2,  5,  6.)  (Husband  and 
Wife — Wife's  power  over  her  separate  estate,  6.) 


MORTGAGE. 

1.  A  provision,  in  a  mortgage  deed  conveying  various  arti- 
cles of  real  and  personal  estate,  that  when  any  amount,  or 
any  note,  is  due,  the  mortgagee  shall  call  on  the  mortgagor 
for  the  same,  and  if  payment  be  made,  nothing  shall  be  done, 
otherwise  the  mortgagee  shall  advertise  and  sell  enough  to 
pay  what  is  due.  and  the  mortgagor  shall  direct  what  shall  be 
sold, — is  a  sufficient  power  of  sale.  Human  v.  Devereux,  63 
N.  0.  E.  624. 

2.  Where  a  mortgage  contains  a  provision  like  the  above, 
it  is  not  according  to  the  course  of  Courts  of  Equity  to  inter- 
fere with  a  proposed  sale  in  compliance  with  the  terms  of  the 
deed ;  especially  where  the  security  is  deficient  iu  amount, 
and  the  mortgagor  probably  insolvent.     Ibid. 

3.  The  assignee  of  a  bond  secured  by  mortgage,  is  entitled 
(nothing  more  appearing)  to  the  benefit  ot  the  mortgage.  1  bid. 


MORTGAGE.  339 

4.  If  a  bond  secured  by  mortgage  be  renewed,  the  new- 
bond  retains  the  same  security.     Ibid. 

5.  A  was  assignee  of  a  mortgage  creditor,  and  at  a  sale 
by  the  mortgagee,  made  under  a  power  in  the  deed,  bought 
the  land  mortgaged ;  B  had  previously  purchased  the  mort- 
gagor's interest  in  the  laud,  and  then  had  let  the  laud  for  a 
year  to  C,  who  was  in  possession  :  held,  that  A,  upon  making 
demand  tor  possession  upon  C,  could  recover  from  him  rent 
due  for  the  year  of  his  tenancy.  Jones  v.  Hill,  64  K.  0.  R.  198. 

6.  Also,  that  C  had  a  right  to  enquire,  by  an  account  in 
the  case,  whether  the  price  given  by  A  upon  his  purchase 
exceeded  the  amount  due  to  him  as  assignee  of  the  creditor, 
and  if  so,  then,  as  representing  B,  probably  C  might  have 
the  benefit  of  the  surplus  for  the  purpose  of  his  defence.  1  bid. 

7.  When  a  debtor  conveys  realty  to  a  creditor  by  deed 
absolute  in  appearance,  and  at  the  same  time  gives  his  note 
for  the  amount  of  such  indebtedness,  and  takes  a  bond  for 
title  upon  the  payment  of  such  uote :  held,  that  such  transac- 
tion is  a  mortgage,  ltobinson  v.  Willoiighby,  65  N.  0.  R.  520. 

8.  To  determine  whether  a  transaction  is  a  mortgage  or 
a  defeasible  purchase,  it  will  be  regarded  as  the  former,  if  at 
the  time  of  the  supposed  sale  the  vendor  is  indebted  to  the 
vendee,  and  continues  to  be  such  with  a  right  to  a  re-couvey- 
auce  upou  the  payment  of  such  indebtedness.     Ibid. 

9.  A  court  of  equity  will  never  decree  a  foreclosure  of  a 
mortgage  until  the  period  limited  for  payment  has  expired. 
It  cauuot  shorten  the  time  given,  by  express  coveuaut  and 
agreement  between  the  parties,  as  that  would  be  to  alter  the 
nature  of  the  contract  to  the  injury  of  the  party  affected. 
Harshaw  v.  McKesson,  66  N.  C  R  266. 

10.  When  a  mortgage  is  executed,  and  it  is  stipulated 
that  if  the  mortgagor  "shall  well  and  truly  pay  and  discharge 
said  debts  according  to  agreement — the  one-third  part  in 
three  years,  one-third  in  four  years,  and  the  remainder  in 
five  years  from  date,  then  the  said  deed  to  be  void r:  htldr 
that  the  said  mortgage  cauuot  be  foreclosed  until  the  last 
period  mentioned,  viz  :  five  years.     Ibid. 

11.  If  the  said  deed  had  stipulated  that  the  estate  should 
be  forfeited  ou  the  failure  to  pay  the  specified  instalments  of 
debts,  then  ou  said  failure  the  mortgagee  could  have  called 
for  his  money  or  proceeded  to  foreclose.     Ibid. 

12.  Where  a  bill  to  foreclose  a  mortgage  is  filed  against 
several  d<  lendants,  some  of  whom  claim  a  portion  of  the 
lands  described  in  the  pleading  under  a  prior  mortgage,  and 
they  do  not  ask  that  the  same  be  sold :  held,  that  it  is  error 


340  MOKTGAGE. 

to  decree  that  said  mortgaged  premises  be  sold  for  the  benefit 
of  the  said  defendants.     Ibid. 

13.  Upon  the  execution  of  a  mortgage,  the  mortgagor 
becomes  the  equitable  and  the  mortgagee  the  legal  owner, 
and  this  relative  situation  remains  until  the  mortgage  is  re- 
deemed or  foreclosed.     Hemphill  v.  Boss,  60  N".  0.  R.  477. 

14.  Until  the  day  of  redemption  be  past,  the  mortgagor 
has  a  legal  right,  and  after,  an  equity  of  redemption      Ibid. 

15.  A  mortgagor  allowed  to  remain  in  possession,  by  the 
long  acquiescence  and  implied  approval  of  the  mortgagee,  is 
not  trespasser  but  a  permissive  occupant,  and  as  such  is  en- 
titled to  reasonable  demand  to  terminate  the  implied  license 
before  an  action  can  be  brought  to  recover  possession.    Ibid. 

16.  A  purchaser  of  the  mortgagor's  estate  under  execu- 
tion and  (where  he  had  leased,)  his  lessees  aie  entitled  to  the 
right  of  the  mortgagor.     Ibid. 

17.  Where  a  person  had  become  tenant  from  year  to  year 
to  a  mortgagor,  before  the  execution  of  the  mortgage  deed,  in 
which  three,  four  and  five  years  had  been  given  for  the  pay- 
ment of  equal  instalments  of  the  bonds  secured  by  it,  and 
afterwards  had  become  the  tenant  of  the  mortgagor's  right 
of  redemption  :  it  teas  held,  that  though  four  years  had 
elapsed  irom  the  date  of  the  mortgage,  and  no  payment  had 
been  made  on  the  bonds,  yet  the  mortgagee  could  not  re- 
cover the  possession  of  the  land  from  such  tenant  without 
giving  him  a  reasonable  notice  to  quit ;  and  further  that  he 
was  not  bound  to  give  him  six  months  notice  because  of  his 
attornment  to  a  landlord  other  than  the  mortgagor.  Hem- 
phill v.  Giles,  m  N.  0.  R  512. 

18.  A  vendor  who  contracts  to  convey  upon  payment  of 
the  purchase  money  is,  as  between  the  parties,  a  mortgagee. 
Ellis  v.  Hussey,  0<>  N.  C.  E.  50  L 

19.  It  is  well  settled  that  a  mortgagee  possesses  two  rem- 
edies which  he  may  prosecute  at  the  same  time,  namely,  one 
in  personam  the  other  in  ren  to  subject  the  mortgaged  prop- 
erty to  its  payment  by  foreclosure  ;  and  a  resort  to  the  first 
does  not  amount  to  a  waiver  of  the  second,  or  vice  versa. 
I  bid. 

20-  The  two  actions  are  not  for  the  same  cause  and  a  dif- 
ferent relief  is  obtained  in  each,  and  this  continues  to  be  the 
ease,  notwithstanding  that  a  single  court  grants  all  the  relief 
which  was  sought  in  two.     Ibid. 

21.  A  mortgage  by  a  buggy-maker,  of  "  ten  new  buggies," 
without  delivery  of  possession,  he  having  more  than  ten  on 
hand  at  the  time,  was  ineffectual  to  pass  title  to  any  partic- 


MORTGAGE.  341 

ular  buggies  or  to  any  interest  on  the  buggies  on  hand ;  and 
the  mortgagee  cannot  maintain  an  action  for  the  recovery  of 
ten  new  buggies  in  the  possession  of  the  mortgagor,  or  his 
personal  representatives.  A  fortiori  is  this  the  case,  if  such 
buggies  were  not  the  same  that  were  on  hand  at  the  date  of 
the  mortgage.     Blakeley  v.  Patrick,  67  N.  0.  R.  40. 

22.  When  the  terms  of  the  condition  of  a  mortgage  relate 
to  future  liabilities  only  :  held,  that  a  stipulation  reciting  that 
it  was  understood,  "that  S.  (the  mortgagee)  shall  not  become 
surety  for  H.,  (the  mortgagor)  for  more  than  $1,200,  inclu- 
ding claims  heretofore  signed  by  said  S,"  and  directed  to 
"  sell  and  pay  off  all  liabilities  for  which  said  S.  may  be  liable 
for  him,"  (the  said  H.,)  do  not  operate  to  extend  the  secu- 
rity to  past  liabilities.      Stokes  v.  Hoiverton,  67  N".  0.  R.  50. 

23.  Where  a  mortgage  is  impeached  for  fraud,  in  that, 
the  execution  of  it  was  obtained  through  talse  and  deceitful 
representation,  it  is  competent  for  the  mortgagee  (the  plain- 
tiff) to  prove  that  the  mortgagors  executed  the  same  of  their 
own  accord,  and  without  solicitation  on  his,  the  mortgagee's 
part,  as  facts  and  circumstances  to  go  to  the  jury  for  the 
purpose  of  disproving  the  allegations  of  fraud.  The  weight 
to  be  given  to  such  evidence  is  altogether  a  question  for  the 
jury.     Blackwell  v.  Cummings,  68  N".  0.  R.  121. 

24.  Where,  by  the  finding  of  a  jury,  it  is  left  an  open 
question,  whether  a  certain  debt  secured  by  a  mortgage  has 
not  been  in  part  paid,  the  mortgagor,  or  those  representing 
him,  have  the  right  to  have  the  fact  of  such  payment  and  its 
proper  application  at  the  time  made,  found  by  the  jury;  and 
for  that  purpose,  the  case  will  be  remauded  from  this  court, 
and  the  issue  made  up  and  responded  to  by  a  jury  in  the 
court  below.     Barnes  v.  Brown,  69  N".  0.  R  439. 

25.  Since  the  statute  of  1821),  deeds  iu  trust  and  mort- 
gages are  of  no  validity  whatever,  as  against  purchasers  for 
value  and  creditors,  until  they  are  registered  ;  and  they  take 
effect  only  from  and  after  the  registration.  ]Sro  notice,  how- 
ever full  and  formal,  will  supply  the  place  of  registration. 
Robinson  v.  Willoughhj,  70  N.  0.  11.  358. 

See  (Pleading  in  equity — Decree  6,  7.)  (Trusts  and  Trus- 
tees, 42,  43  )     (Widow— Of  her  dower,  31.) 


342      MUNICIPAL,  &c— NATURALIZATION. 


MUNICIPAL    CORPORATION. 

1.  A  municipal  corporation  may  be  sued  in  any  form  ap- 
propriate to  the  form  of  action  ;  its  liabilities  does  not,  as 
repects  the  form  of  action,  differ  from  that  of  a  private  cor- 
poration, or  an  individual.  Winsloiv  v.  Comm'rs  dx.,  64 
N.  0.  E.  218. 

2.  Therefore,  an  action,  in  the  form  usual  upon  money 
demands,  was  sustained  against  a  county  for  a  debt  due  on  a 
contract  in  regard  to  bridge  building.     Ibid. 

3.  Semble,  that  the  plaintiff,  upon  a  proper  prayer  for 
judgment,  might,  in  such  a  case,  have  had  a  mandamus,  to 
compel  the  defendant  to  levy  a  tax,  and  pay  his  debts.    Ibid. 

4.  Distinction  between  Corporations  and  quasi-Gorpora,- 
tions,  stated.     Ibid. 

5.  Methods  of  satisfying  judgments  against  municipal 
corporations,  considered  and  discussed.     Ibid. 

See  (Bonds — Of  the  transfer  of  bonds,  1.)  (Mandamus, 
31.)     (Public  Law,  37.) 


NATURALIZATION. 

1.  The  act  of  Congress  of  the  10th  of  February,  1865,  on 
Naturalization  by  the  expression  "Any  woman  who  might 
lawfully  be  naturalized  under  the  existing  laws," — means 
only,  any  woman,  being  a  free  white  person,  and  not  an  alien 
enemy;  therefore,  where  a  descent  was  cast  upon  the  20th  of 
May,  1863,  a  woman  who  in  1857  had  married  in  Ireland  a 
naturalized  citizen  of  the  United  States,  could  inherit,  al- 
though she  had  always  resided  in  Ireland,  and  continued  to 
do  so  until  alter  the  descent  cast.  Kane  v.  McCarthy,  63 
N.  C.  E.  299. 

2.  In  the  same  act,  the  expression,  "Married  or  who  shall 
be  married  to  a  citizen  of  the  United  States,"  casts  a  descent 
in  the  above  case,  upon  a  woman  who,  having  been  born  an 
alien,  in  1851  married  another  alien,  who  declared  his  inten- 
tion to  become  a  citizen  in  1853,  and  was  naturalized  in  1856. 
Hid. 

3.  One  who,  at  the  death  of  the  ancestor,  had  filed  a  de- 
claration of  an  intention  to  become  a  citizen  of  the  United 
States,  but  was  naturalixed  subsequently  to  such  death,  is 
not  capable  of  inheriting.  Harman  v.  Farrell,  64  N.  C.  E.  474. 


NEGLIGENCE.— NEW  TRIAL.  343 


NEGLIGENCE. 

See  (Action  on  the  case — Where  it  will  lie,  1,  2,  3,  4,  5,  6, 
7,  8.) 


NEW  TRIAL. 

1.  Illustration  of  the  difference  in  the  duty  of  the  court 
in  an  application  for  a  new  trial  in  cases  where  there  is  slight 
evidence,  and  in  those  where  there  is  none.  State  v.  Soivls, 
Phil.  L.  R.  151. 

2.  After  verdict  the  defendant  cannot  object  that  evi- 
dence was  improperly  admitted,  if  he  did  not  except  when  it 
was  introduced.     State  v.  Smith,  Phil.  L.  R.  302. 

3.  When  a  verdict  upon  issues  sent  for  trial  from  this 
Court  to  a  Superior  Court,  is,  in  the  opinion  of  the  Judge 
who  presided,  contrary  to  the  weight  of  the  evidence  ;  or  in 
case  of  any  other  miscarriage  by  the  court,  or  the  jury,  such 
•Judge  has  full  power  to  grant  a  new  trial.  Rogers  v.  Good- 
u-in,  64  N.  C.  R.  278. 

4.  It  appears  that,  under  the  0.  C  P.,  sec.  299,  which 
allows  an  appeal  to  the  Supreme  Court  from  an  order  of  the 
Superior  Court  granting  or  refusing  a  new  trial,  the  Supreme 
Court  may  grant  a  new  trial,  because  of  the  refusal  of  the 
continuance  of  his  cause  to  a  party  by  the  Superior  Court, 
wherein  by  law  he  was  entitled  to  it,  or  where  the  refusal 
was  manifestly  unjust  and  oppressive,  and  merits  were  proven. 
Ex.  Bank  of  Columbia  v.  Tidily,  67  N.  C.  R.  469. 

5.  The  rejection  of  evidence  not  material  to  maintain  or 
disprove  the  point  in  issue,  is  no  ground  for  a  new  trial. 
Carrier  v.  Jones,  68  N.  C.  R.  130. 

6.  To  allow  a  witness  after  objection,  to  give  a  history 
of  how  he  became  indebted  to  a  party  in  a  suit,  when  such 
indebtedness  had  no  relation  to  the  point  in  issue,  is  error, 
and  is  a  proper  ground  for  a  new  trial.  Hislop  v.  Hoover, 
68  N.  C.  R.  141. 

7.  The  refusal  of  a  Judge  of  the  Superior  Court  to  grant 
a  new  trial  on  the  ground  of  newly  discovered  evidence  is 
such  a  matter  of  discretion  that  this  Court  will  not  review 
it.     MCuUocek  v.  Book,  68  N.  C.  R.  267. 

8.  A  charge  by  the  Judge  below,  ''  that  the  deed  "  from 
the  grantor  to  the  grantee  "  would  have  been  a  sufficient  de- 
fence had  not  the  insolvency,  or  at  least  the  very  great  in- 


344  NEW  TRIAL. 

debtedness  of  the  grantor,  at  the  time,  been  established, 
which  presumptively  tainted  the  deed  with  fraud,  whereby 
it  devolved  on  the  defendants,"  (claiming  under  the  deed,) 
"  to  show  affirmatively  that  the  sale  from  the  grantor  to  the 
grantee  was  a  fair,  honest  and  bona  fide  transaction,"  when 
warranted  by  the  facts,  is  no  ground  for  a  new  trial.     Ibid. 

9.  A  charge,  ''that  while  in  all  cases  it  was  pleasant  to 
reconcile  testimony,  here  there  was  no  chance  to  do  so. 
That  one  or  the  other  of  the  parties,  it  was  plain,  had  com- 
mitted perjury,  and  the  jury  must  meet  the  case  fairly,  and 
decide  which  of  the  parties  had  sworn  to  the  truth,"  gives 
no  intimation  whatever  from  his  Honor,  which  witness  the 
jury  are  to  believe,  and  is  therefore  no  ground  for  a  new 
trial.     Critcher  v.  Hodges,  08  N.  0.  B.  22. 

10.  Tampering  with  a  juror,  during  the  progress  of  a 
trial,  by  any  one,  is  a  sufficient  reason  for  setting  aside  the 
verdict.     Love  v.  Moody,  08  K  0.  E.  200. 

11.  When  an  appeal  is  taken  from  the  Superior  to  the 
Supreme  Court,  a  proceeding  to  obtain  a  new  trial  on  account 
of  newly-discovered  testimony  cannot  be  instituted  in  the 
Superior  Court,  but  must  be  brought  in  the  Supreme  Court, 
and  upon  a  proper  case  that  court  will  remand  the  cause  so 
that  the  Superior  Court  may  take  jurisdiction  and  proceed 
to  do  what  may  be  light.  But  if  the  newly-discovered  testi- 
mony applies  to  only  a  part  of  the  judgment,  the  Supreme 
Court  will  retain  the  cause  and  order  proper  issues  to  be 
made  up  upon  the  alleged  newly-discovered  testimony  and 
sent  down  for  trial  in  the  Superior  Court,  and  will  impose 
such  terms  upon  the  applicant  for  the  new  trial  as  may  be 
deemed  proper.     Bledsoe  v.  Nixon,  09  N.  U.  E.  81.    . 

12.  The  rules  in  relation  to  applications  for  new  trials 
upon  which  they  are  founded,  discussed  and  explained  in  the 
opinion  filed  by  the  Chief  Justice.     Ibid. 

13.  Entries  in  a  book  showing  a  state  of  facts  not  mate- 
rially different  from  those  appearing  on  a  trial,  will  not  enti- 
tle one  of  the  parties  to  have  the  judgment  set  aside  and  a 
new  trial,  although  the  existence  of  such  entries  was  unknown 
at  the  trial  aud  was  subsequently  discovered.  Tull  v.  Pope, 
09  N.  C.  B,  183. 

14.  Granting  a  new  trial  because  of  newly-discovered 
evidence  must  necessarily  always,  or  nearly  always,  be  within 
the  discretion  of  the  presiding  Judge,  and  his  decision  can 
very  rarely  in  such  cases,  be  on  a  naked  matter  of  law  or 
legal  inference,  so  as  to  authorize  an  appeal.  Holmes  v. 
Goodwin,  09  N.  C.  E.  407. 


NEW  TEIAL.  345 

15.  In  an  action  against  a  sheriff  for  negligence  aud  not 
using  due  diligence  in  endeavoring  to  collect  a  judgment,  the 
execution  on  which  had  been  regularly  placed  in  his  hands, 
the  defence  being  that  the  execution  was  held  up  by  direc- 
tion of  the  plaintiff ;  and  on  the  trial  the  jury  find  all  issues 
in  favor  of  the  defendant :  held,  that  it  was  no  grouud  for  a 
new  trial,  that  the  jury  failed  to  give  the  plaintiff  nominal 
damages,  under  the  instructions  of  the  Court.  Foust  v. 
Stafford,  70  N.  0.  R.  115. 

10.  It  is  uo  grouud  for  a  new  trial,  that  the  defendant's 
counsel  made  a  mistake  in  admitting  in  the  answer  the  exist- 
ence of  a  certain  contract,  which  mistake  was  not  discovered 
until  after  the  trial,  aud  his  Honor  did  right  in  refusing  it. 
Aston  v.  Craig  miles,  70  N.  0.  E.  316. 

17.  To  vitiate  and  avoid  a  verdict,  it  must  appear  upon 
the  record  that  undue  influence  was  brought  to  bear  on  the 
jury.  All  other  circumstances  of  suspicion  address  them- 
selves exclusively  to  the  discretion  of  the  presiding  Judge,  in 
granting  or  refusiug  a  new  trial,  which  discretion  is  not  a 
proper  subject  of  review  by  this  court.  Moore  v.  Edmiston, 
70  X.  C.  E.  471. 

18.  To  give  parties  the  benefit  of  the  provision  of  sec. 
299,  C.  0.  P.  allowing  an  appeal  from  an  order  granting  or  re- 
fusing a  new  trial,  the  presiding  Judge  should  put  upon  the 
record  the  matters  inducing  the  order,  so  that  this  court  can 
see  whether  the  order  presents  a  matter  of  law  which  is  a  sub- 
ject of  review,  or  matter  of  discretion  which  is  not.     Ibid. 

19.  The  court,  during  the  trial,  took  a  recess,  when  the 
jury  separated  and  dispersed,  the  defendant  not  objecting, 
nor  his  Honor  charging  them  not  to  do  so,  nor  cautioning 
them  against  conversing  with  any  one  concerning  the  pend- 
ing case:  held,  to  be  no  grouud  for  a  new  trial.  Bullinger  v. 
Marshall,  70  N.  0.  Ii.  520. 

20.  Held  further,  that  the  defendant  being  disappointed 
by  a  witness  who  told  him  the  day  before  the  trial  that  he, 
the  witness,  would,  if  examined,  give  him,  the  defendant,  a 
good  character,  and  which  the  witness  did  not  do,  is  not  such 
a  surprise  as  to  entitle  the  defendant  to  a  new  trial     Ibid. 

21.  The  Supreme  Court  has  no  power  to  grant  a  new 
trial  because  a  verdict  is  found  upon  insufficient  testimony,  or 
against  (he  weight  of  testimony.  The  sufficiency  of  the  testi- 
mony offered  is  a  question  exclusively  for  the  jury.  Whether 
a  verdict  is  against  the  weight  of  the  testimony  is  a  matter 
exclusively  for  the  discretion  of  the  Judge  who  presides  at 
the  trial.     State  v.  Storlcey,  63  \.  C.  R  7. 

See  (Jury — Of  the  challenges  to  the  Jury,  16.) 


346  NOTICE— OFFICE  AND  OFFICER. 


NOTICE. 

1.  One  who  is  put  upon  inquiry  by  certain  facts  within 
Lis  knowledge,  is  aftected  with  notice  of  everything  that  such 
inquiry  would  have  discovered.  May  v  Hanks,  Phil.  Eq.  R. 
310. 

2.  In  the  absence  of  deliberate  fraud  upon  the  part  of  the 
owner,  the  title  to  an  equitable  estate  in  land  is  not  bound  by 
his  conduct,  as  creating  an  estoppel-in-pais.     Ibid. 

3.  There  is  a  marked  distinction  between  cases  where  no- 
tice is  necessary  as  preliminary  to  the  action,  to  enable  the 
defendant  to  pay  and  save  the  costs  of  the  action,  and  case 
where  notice  is  necessary  to  constitute  a  cause  of  action. 
Bryan  v.  Heck,  67  BT.  C.  R.  322. 

4.  Where  a  motion  is  made  by  a  party  to  set  aside  a  judg- 
ment, notice  must  be  given  to  the  adverse  party.  Seymour 
v.  Cohen,  67  N.  C.  R.  345. 

5.  The  five  clays'  notice  which  was  required  by  the  21st 
section  of  the  C.  C.  P  ,  previous  to  a  motion  for  judgment  on 
account  of  a  frivolous  demurrer,  answer  or  reply,  is  not  appli- 
cable since  the  C.  C.  P.  has  been  suspended  and  the  summons 
in  civil  action  is  made  returnable  to  the  Court  in  term  time. 
Now  such  notice  is  unnecessary,  as  the  parties  through  their 
counsel  must  take  notice,  at  their  peril,  of  all  motions  and 
steps  in  the  cause      Clayton  v.  Jones,  68  N.  C.  R.  497. 

6.  Neither  the  Code  of  Civil  Procedure,  sec.  72,  nor  the 
proviso  in  the  Act  of  1870,  chap.  — ,  requires  notice  to  be 
given  the  adverse  party,  on  an  application  for  permission  to 
defend  a  suit  without  giving  the  required  securitv.  Deal  v. 
Palmer,  68  N.  C.  R.  215. 


OFFICE  AND   OFFICER. 

1.  A  civil  action  in  which  the  plaintiff  in  his  own  name 
sets  forth  in  his  complaint  that  he  is  a  tax  collector  for  a  cer- 
tain county,  and  that  the  defendant  has  usurped  the  office, 
aud  has  unlawfully  received  the  fees  and  emoluments  thereof, 
cannot  be  brought  under  the  189th  section  of  the  C.  C.  P., 
aud  thereby  obtain  an  injunction  to  restrain  the  defendant 
from  acting  in  said  office.  Patterson  v.  Hubbs,  65  N.  C.  R. 
119. 

2.  The  189th  section  of  the  C.  C.  P.,  which  provides  as 
to  a  civil  action  that  ''when,  during  the  litigation  it  shall 


OFFICE  AND  OFFICER.  347 

appear  that  the  defendant  is  doing  or  threatens,  or  is  about 
to  do,  or  procuring  or  suffering  some  act  to  done  in  violation 
of  the  plaintiff's  rights  respecting  the  subject  of  the  action, 
and  tending  to  render  the  judgment  ineffectual,  a  temporary 
injunction  may  be  granted  to  restrain  such  act,"  does  not 
apply  to  cases  of  the  usurpation  of  a  public  office,  but  is  con- 
fined to  cases  where  some  private  right  is  a  subject  of  con- 
troversy, and  the  act  sought  to  be  restrained  would  produce 
injury  to  the  alleged  right  of  the  plaintiff  during  the  litiga- 
tion.    Ibid. 

3.  When  the  subject  of  controversy  is  the  right  to  a 
public  office,  the  action  should  be  brought  by  the  Attorney- 
General,  under  the  3G(ith  section  of  C.  0.  P.,  in  the  name  of 
the  people  of  the  State,  and  if  it  be  brought  against  a  per- 
son for  usurping  a  public  office,  the  Attorney-General,  in 
addition  to  the  statement  of  the  cause  of  action,  "  may  also 
set  forth  in  the  complaint  the  name  of  the  person  rightfully 
•entitled  to  the  office,  with  a  statement  of  his  right  thereto; 
and  in  such  case,  upon  proof  by  affidavit  that  the  defendant 
has  received  fees  or  emoluments  belonging  to  the  office, 
and  by  means  of  his  usurpation  thereof,  an  order  may  be 
granted  by  a  Judge  of  the  Supreme  Court  for  the  arrest  ot 
such  defendant,  and  holding  him  to  bail ;"  as  in  other  civil 
actions  where  the  defendant  is  subject  to  arrest.     Ibid. 

4.  ''The  Governor  shall  nominate,  and  by  and  with  the  ad- 
vice and  consent  of  a  majority  of  the  Senators  elect,  appoint 
all  officers,  whose  offices  are  established  by  this  Constitution, 
or  which  shall  be  created  by  law,  or  whose  appointments  are 
not  otherwise  provided  for,  and  no  such  officer  shall  be  ap- 
pointed or  elected  by  the  General  Assembly."  Section  10, 
Article  3,  Constitution.  The  words  contained  in  the  above 
section  of  the  Constitution,  "  whose  appointments  are  not 
otherwise  provided  for,"  mean  provided  tor  by  the  Constitu- 
tion, and  the  words  "no  such  officer  shall  be  appointed  or 
elected  by  the  General  Assembly,"  are  superadded  as  an  ex- 
press veto  upon  the  power  of  the  General  Assembly,  whether 
such  office  shall  be  established  by  the  Constitution  or  be 
created  by  an  Act  of  the  General  Assembly.  Clark  v. 
Stanley,  66  N.  C.  R.  59. 

5.  A  public  office  is  an  agency  for  the  State,  and  the  per- 
son whose  duty  it  is  to  perform  that  agency,  is  a  public  offi- 
cer. Nor  does  it  make  any  difference  whether  he  receives  a 
salary  and  fees  and  takes  an  oath,  these  being  mere  incidents 
and  no  part  of  the  office  itself.  Nor  is  it  material  whether 
one  act  or  a  series  of  acts  are  required  to  be  done.     Ibid. 


348  OFFICE  AND  OFFICER. 

6.  The  Act  of  the  General  Assembly,  passed  April  6tb, 
1871,  giving  to  the  President  of  the  Senate  and  the  Speaker 
of  the  House  of  Representatives,  the  power  to  appoint  ''all 
proxies  and  directors  in  all  corporations  in  which  the  State 
has  an  interest,"  creates  a  public  office  and  tills  the  same  by 
appointment  of  the  Legislature.  It  is,  therefore,  unconstitu- 
tional.    Ibid. 

7.  The  power  of  the  General  Assembly  to  repeal  an  act, 
which  had  been  passed  since  the  adoption  of  the  Constitution, 
and  accepted  by  the  Railroad  Company  as  an  amendment  to 
their  charter,  discussed  by  Pearson,  C.  J.     Ibid. 

8.  The  Legislature,  like  the  other  departments  of  the 
State  government,  acts  under  a  (/rant  of  powers,  and  cannot 
exceed  that  grant.  People  ex  rel.  Nichols  el  al.  v.  McKee  et 
al,  G8  N".  C.  R.  429. 

9 .  There  is  no  express  grant  of  power  to  the  legislative 
department  to  appoint  to  office;  but  there  is  an  express  pro- 
hibition.    Ibid 

10.  The  general  appointing  power  is  given  to  the  Governor 
with  the  concurrence  of  the  Senate ;  the  power  to  fill  the  va- 
cancies, not  otherwise  provided  for,  is  given  to  the  Governor 
alone,  and  that  whether  the  Legislature  is  in  session  or  not, 
and  without  calling  the  Senate.     Ibid. 

11.  The  Directors  of  the  Institution  for  the  Deaf  and 
Dumb  and  the  Blind  are  officers,  made  so  by  the  Constitu- 
tion and  so  called.  The  Legislature  has  no  right  to  appoint 
such  directors.     Ibid. 

12.  Persons  licensed  to  trade  under  the  revenue  laws  of 
the  United  States  are  not  officers  of  the  United  States. 
State  v.  Bell,  Phil.  L.  R.  76. 

13.  Public  officers  who  have  not  taken  the  required  oath 
of  office  are  not  entitled  to  the  salaries  attached  to  such 
offices.     Wiley  v.  Worth,  Phil.  L.  R  171. 

14.  The  charter  of  a  town  requiring  the  officers  to  be 
elected,  persons  cannot  claim  to  be  de  facto  officers  of  that 
town  who  have  never  been  elected,  but  they  are  mere  usui- 
pers,  and  the  corporation  is  not  liable  for  contracts  made  by 
them  in  the  name  of  the  town.  Keeler  v.  Newbern,  Phil. 
L.  R  505. 

15.  Upon  the  order  of  General  Schofield  (April  27, 18G5), 
announcing  the  subjugation  of  North  Carolina,  all  persons 
who  had  been  civil  officers  in  the  State  ceased  to  be  such  de 
facto  as  well  as  de  jure.     Cooke  v.  Coolie,  Phil.  L.  R.  583. 

16.  A  Justice  of  the  Peace  lias  no  power  to  depute  a  sp<  - 
c'al  officers  to  execute  civil  process.  Mamie  v.  Williams,  03 
N.  0.  R.  371. 


OFFICE  AND  OFFICER.  349 

17.  The  right  of  a  de  facto  officer  to  hold  his  office,  can- 
not be  questioned  collaterally — as,  here,  by  objecting  to  an 
answer  purporting  to  have  been  sworn  to  before  him.  Cul- 
ver v.  Eggers,  63  N".  C.  R.  630. 

18.  The  Trustees  of  the  University,  the  Directors  of  the 
Penitentiary,  of  the  Lunatic  Asylum  and  of  the  Institution 
for  the  Deaf  and  Dumb  and  the  Blind,  aie  public  officers. 
People  ex  rel.  Welker  et  at.  v.  Bledsoe  et  al.,  68  N".  C.  R.  457. 

19.  By  virtue  of  Art.  3,  sec.  10,  of  the  Constitution,  the 
Governor  shall  nominate,  and  by  and  with  the  advice  and 
consent  of  a  majority  of  the  Senators  elect,  appoint  the 
Directors  of  the  Penitentiary,  and  such  other  officers  as  are 
therein  prescribed.     Ibid. 

20.  An  officer  elected  by  the  people  holding  over  his 
regular  term  on  account  of  the  failure  of  his  successor  to 
quality,  holds  over  until  the  place  is  tilled  at  "  the  next  gen- 
eral election"  by  the  people.  People  ex  rel  Battle  v.  Mclver, 
68  X.  C  E.  467. 

2t.  The  Governor  never  nominates  to  the  Senate  to  fill 
vacancies.     He  does  that  alone  in  all  cases.     Ibid. 

22.  Where  officers  have  to  be  appointed  to  fill  a  regular 
term,  then  he  nominates  to  the  Senate,  unless  it  be  an  officer 
who  is  elected  by  the  people,  and  then  he  never  nominates 
to  the  Senate,  but  tills  the  vacancy  or  term  by  his  own  ap- 
pointment (unless  there  is  an  officer  holding  over)  until  the 
people  can  elect.     Ibid. 

23.  The  Legislature  cannot  authorize  the  presiding  offi- 
cers of  its  two  branches  to  appoint  proxies  and  directors  in 
behalf  of  the  State  in  corporations  in  which  the  State  has  an 
interest ;  nor  can  the  Legislature  itself  make  such  appoint- 
ments, for  the  reason  that  it  would  be  an  usurpation  of  exec- 
utive power,    State  ex  rel.  Howerton  v.  Tate,  68  N.  C.  R.  546. 

24  The  Legislature  by  the  Acts  of  13th  February,  1871, 
and  6th  of  April,  1871,  having  assumed  to  take  the  appoint- 
ment of  directors  for  the  State  of  the  Western  "North  Caro- 
lina Railroad  from  the  Governor,  it  thereby  dispensed  with 
the  necessity  of  his  sending  nominations  to  those  offices  to 
the  Senate  and  left  the  Governor  to  pursue  the  law  as  he 
could.     Ibid. 

25.  The  Act  of  1 869-'70,  chap.  43,  repeals  the  Act  estab- 
lishing the  office  of  Public  Printer;  and  the  Public  Printer 
as  now  provided  for,  is  not  an  officer  within  the  meaning  of 
The  Constitution.     Brown  v.  Turner,  70  X  C.  R.  93. 

26  When  the  question  of  the  right,  or  title  to  an  office 
is  put  in  issue,  mandamus  is  not  the  form  of  action,  the  ap- 


350    OFFICE,  &c— ORDINANCES,  &c— OVERSEER 


propriate  remedy  being  an  action  in  the  nature  of  a  quo  war- 
ranto; nor  will  mandamus  lie,  when  two  persons  claim  the 
same  duty  adversely  to  each  other,  against  a  third  party.  Ibid. 

27.  Any  person  having  a  right  to  an  office,  can  in  his 
own  name,  bring  an  action  for  the  purpose  of  testing  his  right 
as  against  one  claiming  adversely.     1  bid. 

28.  A  person  who  is  rightfully  entitled  to  an  office,, 
although  not  in  the  actual  possession  thereof,  has  a  property 
therein,  and  may  maintain  an  action  for  money  had  and  re- 
ceived, against  a  mere  intruder,  who  may  perform  the  duties 
of  such  office  for  a  time  and  receive  the  fees  arising  there- 
from ;  and  such  intruder  cannot  retain  any  part  of  the 
fees  as  a  compensation  for  his  labor.  Howerton  v.  Tate,  70 
N.  C.  R.  161. 

See  (Constitution,  28,  29,  30,  31.)  (Mandamus.  1,  18,  19, 
20,  30.)     Special  courts  in  cities  and  towns,  11,  12  ) 


ORDINANCES  OF  THE  CONVENTION. 

1.  A  note  given  to  C,  in  1866,  by  A  as  principal,  and  B 
as  surety,  in  payment  for  certain  notes  made  in  1864  by  B  to 
C,  which  in  1866  were  purchased  by  A  from  C,  is  a  new  con- 
tract by  A  and  B,  and  not  one  "in  renewal  of  or  a  substitute 
for"  the  contracts  of  1864,  within  the  5th  section  of  the  Or- 
dinance of  March  14th,  1868.  Hood  v.  Froneberger,  63  N. 
C.  R.  35. 

2.  A  surety  to  a  note  made  in  1861  having  paid  it  off  iu 
1866  :  held,  that  his  claim  on  that  account  against  his  prin- 
cipal was  not  included  in  the  Ordinance  of  June,  1866,  which 
conferred  exclusive  jurisdiction  on  the  Superior  Courts  in  re- 
gard to  all  actions  on  contracts  made  prior  to  May  1,  1865. 
Smith  v.  Moore,  63  N.  C.  II.  138. 


OVERSEER. 

An  overseer  who  contracts  to  carry  on  a  farm  for  the  own- 
er at  a  fixed  salary  for  t lie  year,  is  entitled  to  recover  for  the 
value  of  his  services,  where  be  quits  his  employer  before  the 
expiration  of  the  year,  because  this  employer  sells  out  the 
plantation,  stock  and  crop,  and  directs  the  overseer  to  remain 
and  carry  out  the  contract  with  the  purchaser  of  the  planta- 
tion.    Woodley  v.  Bond,  66  N.  O  R.  396. 


PARDON— PARTITIONS.  351 


PARDON. 

An  appeal  by  the  defendant  in  a  criminal  case  to  the  Su- 
preme Court,  vacates  the  judgment  below  ;  therefore,  in  such 
a  case,  where  the  Supreme  Court  had  decided  that  there 
was  no  error,  and,  upon  the  transcript  beiug  returned,  the 
Solicitor  moved  for  judgment:  held,  that  the  defendant, 
upon  produciDg  an  unconditional  pardon,  had  a  right  to  be 
discharged,  without  paying  costs.  State  v.  Underwood,  64 
N.  0.  R,  599. 

See  (Amnesty.) 


PARTITIONS. 

1.  The  sums  charged  upon  '*  the  more  valuable  divi- 
dends," in  partitions  of  lands  under  the  Kev.  Code,  ch.  82, 
are  charges,  not  upon  the  persons  of  the  owners  of  such  divi- 
dends, but  upon  the  land  alone.  Young  v.  Davidson  College, 
Phil.  Eq.  R.  261. 

2.  Where  in  a  petition  for  partition  of  land,  the  tract  was 
described  by  metes  and  bounds,  and  title  was  claimed  under 
a  patent  to  J.  M.,  which  was  referred  to  as  an  exhibit,  but 
the  date  of  which  was  incorrectly  stated,  and  the  answer  of 
the  defendant  admitted,  that  he  claimed  title  to  a  tract  of 
land  of  similar  course  and  distances  with  that  described  in 
the  petition,  patented  to  J.  M.,  November  6th,  1784,  and 
alleged  that  if  the  identity  of  the  land  was  ascertained  by 
survey,  then  he  was  a  tenant  in  common  with  the  petitioner ; 
otherwise  not :  held,  that  while  it  would  have  been  more  reg- 
ular to  require  the  plaintiff  to  amend  his  petition  by  giving 
the  true  date  of  the  grant,  and  allow  the  defendant  to  amend 
his  answer,  it  was  not  error  to  permit  the  plaintiff  to  pro- 
duce the  grant  as  an  exhibit  at  the  hearing,  without  such 
amendment,  and  order  the  partition.  Wright  v-  McCormick, 
67  N.  C.  R.  27. 

3.  In  a  petition  for  partition,  if  the  plea  of  "sole  seizure  " 
is  not  put  in  before  the  order  of  partition  is  made,  it  will  be 
considered  as  waived,  and  the  parties  to  the  proceeding  will 
be  taken  to  be  tenants  in  common.  Wright  v.  McCormick, 
69  X.  C.  R.  14. 

4.  In  a  proceeding  for  partition  in  which  the  petition  sets 
forth  a  particular  description  of  the  land,  aud  upon  an  order 


352  PAETITIONS.— PAETKEBSHIP. 

for  partition  the  commissioners  appointed  to  make  it  return 
a  report  of  their  proceedings  in  the  division  of  the  laud,  and 
the  defendant  objects  to  the  confirmation  of  it,  upon  the  al- 
legation that  they  have  not  divided  the  land  described  in  the 
petition,  he  cannot  complain  of  an  order  of  the  Judge  refer- 
ing  it  to  the  clerk  to  take  and  state  evidence  with  regard  to 
the  identity  of  the  land.     Ibid. 

5.  A,  B  and  G  are  tenants  in  common  of  a  tract  of  land; 
0  dies  in  debt,  and  his  widow  becomes  administratrix.  A 
and  B  riled  their  petition  for  a  partition  of  the  land  in  three 
parts :  held,  that  the  widow  of  0  being  entitled  to  dower, 
and  also  as  representing  the  creditors  of  0  was  a  necessary 
party  to  such  petition,  both  as  widow  and  administratrix. 
Gregory  v.  Gregory,  69  N.  C.  E.  522. 

6.  In  a  petition  for  partition  of  a  tract  of  land  consist- 
ing of  twelve  and  three-fourths  acres,  worth  $109.40;  the 
commissioners  appointed  for  the  purpose,  having  divided  the 
tract  into  three  parts,  worth  respectively  the  dwelling  house 
share,  $144.15,  and  the  two  others,  $34  and  $21.25:  held, 
in  such  case  an  actual  partition  with  a  reasonable  equality  of 
values  could  not  be  made  without  impairing  the  value  of 
some  of  the  shares,  and  that  the  Court  ought  to  have  or- 
dered the  land  to  be  sold  for  an  equal  division.     Ibid. 


PARTNERSHIP. 

1.  A  partner,  who  undertakes  to  wind  up  the  business, 
stands  in  the  place  of  an  executor,  and  therefore  can  estab- 
lish disbursements  only  by  vouchers  properly  authenticated. 
Clements  v.  Mitchell,  Phil.  Eq.  E.  3. 

2.  Eeal  estate  owned  by  a  partnership  is  not  regarded  in 
this  State  as  personalty.     Furguson  v.  Hass,  Phil.  Eq.  E.  113. 

3.  A  partner  who,  upon  a  dissolution  of  the  firm,  under- 
takes to  collect  the  debts,  is  bound  only  to  the  dilligence  of  a 
collecting  agent,  and  so  is  responsible  for  all  that  it  can  be 
shown  that  he  collected,  or  might  with  reasonable  diligence 
have  collected.  It  is  an  error  to  throw  upon  him  the  burden 
of  proving  what  accounts  in  his  hands  were  bad.  Phelan  v. 
Hutchinson,  Phil.  Eq.  E.  110. 

4.  Iu  taking  a  partnership  account,  items  of  debt  by  the 
partners  to  the  firm  are  to  be  deducted  out  of  the  shares  of 
such  partners  respectively,  and  not  out  of  the  assets  of  the 
firm.     Ibid. 


PAETNEESHIP.  353 

5.  Q  hop  re,  Whether  the  principal  established  in  Boyd  v. 
Hawkins,  2  Dev.  Eq  ,  32!),  as  regards  co  amissions  to  trustees, 
<S:c,  be  not  applicable  to  a  surviving  partner  who  settles  up 
the  partnership  business.     1  bid. 

6.  A  transfer,  iu  terms  absolute,  of  all  the  effects  of  a  firm, 
{consisting  of  goods  and  choses  in  action  of  an  unascertained 
value)  having  been  made  in  the  firm  named  by  one  partner 
without  the  consent  of  his  co-partner,  for  a  certain  sum,  being 
the  amount  of  the  firm  debts;  held,  not  to  be  absolute,  but 
only  a  security  for  the  firm  debts.  High  v.  Lack,  Phil.  L.  E. 
175, 

7.  Aso  held,  that  any  surplus  after  payment  of  the  firm 
debts  belonged  to  the  individual  members  of  the  firm.    Ibid. 

8.  Therefore,  an  injunction  granted  at  the  instance  of  the 
non-assenting  partner  should  be  continued  to  the  hearing, 
and  in  the  meantime  a  receiver  should  be  appointed.     Ibid. 

9.  When  a  partnership  at  its  dissolution  was  much  in 
debt,  and  the  estate  of  the  deceased  partner  was  insolvent, 
held,  that  the  fact  that  a  tract  of  land  owned  in  common  by 
the  partners  was  probably  a  part  of  the  firms  assets,  was  suffi- 
cient ground  for  au  injunction  in  favor  of  the  surviving  part- 
ner, forbidding  the  administrator  of  the  deceased  partner 
from  proceeding  under  au  order  to  sell  such  land  by  license 
from  the  county  court,  in  order  to  pay  the  separate  debts  of 
his  intestate.     Williams  v.  Moore,  Phil.  Eq.  E.  211. 

10.  One  of  two  partners  having  died,  and  the  survivor 
and  a  third  person  having  been  appointed  administrators  on 
his  estate,  a  bill  filed  by  such  surviving  partner  against  his 
co-administrator  for  a  settlement  of  the  affairs  of  the  firm, 
is  demurrable  and  will  be  dismissed.  Smith  v.  Bryson,  Phil. 
Eq.  E.  207. 

11.  Where  some  of  the  executions  were  against  a  firm, 
and  others  against  O.,  one  of  its  members:  held,  as  the  prop- 
erty sold  was  firm  property,  and  insufficient  to  satisfy  the 
former  class  of  executions,  the  money  should  be  divided  pro 
rata  amongst  those,  in  exclusion  of  the  latter  class.  Roberts 
v.  Oldham,  G3  N.  0.  E.  21)7. 

12.  Also,  that  the  fact  that  one  of  the  firm  creditors  was 
secured  by  a  mortgage  upou  the  separate  property  of  O., 
had  no  effect  in  postponing  his  right  to  the  proceeds  in  the 
hands  of  the  sheriff.     Ibid. 

13.  Where  an  oral  contract  was  made  with  the  three 
members  of  a  partnership  personally  :  held,  that  they  could 
recover  upon  it  iu  their  joint  names,  without  regard  to  the 

23 


354  PARTNERSHIP. 

style  of  their  partnership,  although  this  had  been  set  forth 
in  the  writ.     Palm  v.  Small,  63  N.  0.  R.  484. 

14.  In  an  action  for  the  value  of  lumber  delivered  by  a 
firm,  the  acceptance  thereof  by  the  defendant  is  evidence  of 
privity  of  contract  between  the  parties.  Broadus  v.  Evans y 
03  N.  0.  R.  633. 

35.  One  partner  cannot,  without  the  consent  of  his  co- 
partner, agree  to  receive  payment  for  goods  sold  by  the  firm, 
in  debts  due  by  himself  individually.     Ibid. 

16.  Where  a  partnership  is  formed  for  a  definite  term, 
which  has  not  expired,  the  Court  will  not  decree  a  dissolu- 
tion except  under  special  circumstances ;  neither  will  it, 
where  circumstances  render  a  dissolution  inconvenient,  as 
where  a  large  operation  has  been  commenced,  which  cannot 
be  arrested  without  serious  loss.  But,  where  the  Court  does 
order  a  dissolution,  it  will  appoint  a  receiver  upon  a  dis- 
agreement between  the  partners  in  the  course  of  the  wind- 
ing up ;  and  the  same  rule  must  apply  where  a  dissolution 
has  taken  place  by  consent  or  otherwise,  and  a  serious  dis- 
agreement arises  afterwards.  Richards  v.  Baurman,  65  N» 
0.  R.  162. 

17.  If  a  partner  purchases  property  with  the  partnership 
effects,  and  sells  said  property  to  a  bona  fide  purchaser  with- 
out notice,  the  other  party  cannot  follow  the  property  in 
the  hands  of  such  purchaser.  Chiply  v.  Keaton,  65  N.  C.  R. 
534. 

18.  The  declarations  of  a  supposed  partner,  in  the  absence 
of  the  other,  are  not  admissible  against  the  latter  until  the 
partnership  has  been  proved  aliunde.  McFayden  v.  Har- 
rington, 67  N.  C.  R.  29. 

19.  When  one  partner,  who  is  insolvent  or  in  failiug  cir- 
cumstances, without  the  consent  and  against  the  will  of  the 
other  partner,  is  disposing  of  the  effects  of  the  partnership, 
and  appropriating  them  to  his  own  use,  the  other  partner 
has  the  right  to  an  injunction,  and  to  have  a  receiver  ap- 
pointed.    Phillips  v.  Trezevant,  67  N.  C.  R.  370. 

20.  If  one  buy  goods  of  a  manufacturing  company  from 
time  to  time,  and  sell  them  on  his  account,  the  compauy  not 
participating  in  his  profits,  nor  being  liable  for  his  loss,  it  does 
not  afford  the  slightest  evidence  of  a  partnership  between 
him  and  the  company.  Gilbreath  &  Co.  v.  Lineberger  &  Co., 
69  N.  C.  R.  145. 

21.  A,  as  surviving  partner  of  A  and  B,  sold  in  1863,  cer- 
tain cotton  belonging  to  the  firm,  on  a  credit  of  six  months, 
the  purchase  money  to  be  paid  when  due  in  funds  current  at 


PARTNERSHIP.— PAYMENT.  353 

the  time.  0,  also  a  partner  of  A  in  another  business,  bought 
the  cotton,  giving  A,  the  surviving  partner,  a  note  for  the 
amount,  to-wit :  $5,081.20,  which  amount  was  paid  to  A 
when  the  note  became  due,  whereupon  A  tendered  to  D,  the 
administrator  of  B,  the  deceased  partner,  one  half  of  the 
cotton  money,  to-wit :  $2,840.00,  which  D  refused  to  receive, 
and  funded  the  amount  in  Confederate  4-per  cent,  bonds, 
holding  the  bonds  for  D's  benefit.  In  a  suit  by  D  against  A 
for  a  settlement  of  the  copartnership,  and  in  which  D  seeks 
to  charge  A  with  the  whole  amount  of  the  cotton  sale:  It  was 
held,  that  in  a  settlement  of  the  co-partnership,  A  should  be 
allowed  as  a  credit  the  amount  funded  in  Contederate  securi- 
ties, which  was  lost,  and  that  he  should  be  charged  by  the 
firm  with  the  one-half  of  the  sale,  $2,840.09,  which  he  re- 
tained to  his  own  use!.     Thompson  v.  Rogers,  09  N.  O.  R.  357. 

22.  Held  further,  that  A,  the  surviving  partner,  had 
acted  in  good  faith  in  a  fiduciary  character ;  the  scale  as  ap- 
plied to  contracts  generally  does  not  apply  in  this  case,  A 
being  responsible  only  for  the  value  of  the  Confederate  money 
at  the  time  he  received  it.     Ibid. 

See  (Executors  and  Administrators — Of  their  liability  to 
creditors,  7.)  (Trusts  and  Trustees,  49.)  (Vendor  and  Pur- 
chaser, 0,  7.)     (Widow— Of  her  Dower,  11.) 


PAYMENT. 

1.  Payments  made  on  a  debt  contracted  before  the  late 
civil  war,  in  confederate  currency  during  the  war,  are  to  be 
taken  according  to  their  face  values.  Having  been  accepted 
by  the  creditor,  they  amount  to  a  discharge  to  the  extent  of 
their  nominal  value,  notwithstanding  the  fact  that  they  were 
made  in  depreciated  currency.  Halt  v.  Craige,  05  N.  C.  14. 
51. 

2  Credits  in  currency,  endorsed  as  such  on  a  note  paya- 
ble in  specie,  are  payments  only  to  the  amount  of  their  value 
in  specie  of  such  credits  at  the  respective  dates  of  payment. 
Walkup  v.  Houston,  05  X.  O.  R  501, 

3.  A  voluntary  payment,  with  a  knowledge  of  all  the 
facts,  cannot  be  recovered  back,  although  there  was  no  debt; 
a  payment,  under  a  mistake  of  fact,  may.  Adams  v.  Reeves, 
08  N.O.R.  134. 

4.  If  one  knowing  he  has  no  claim  upon  another,  sues 
out  legal  process  against  him  and   seizes  his  person  or  prop- 


356  PAYMENT. 

erty,  and  the  defendant,  acting  upon  the  false  representations 
of  the  plaintiff,  and  not  being  able  at  the  time  by  reasonable 
dilligeme,  to  know  or  to  prove  that  such  representations  are 
false,  pays  the  demand,  he  may  recover  it  back  in  a  subse- 
quent action.     Ibid. 

5.  Where  a  party  accepts,  in  full  satisfaction  of  a  demand 
he  makes  on  a  sheriff  and  his  sureties  for  money  received 
through  a  mistake,  a  judgment  obtained  against  himself  by 
one  of  those  sureties,  which  judgment  is,  at  his  request,  as- 
signed to  his  son,  and  at  the  same  time  releases  the  surety 
assigning  the  judgments,  "  from  all  responsibility  in  any  way 
arising  out  of  his  being  surety,"  &c,  such  assignment  oper- 
ates as  a  payment  in  full  of  the  demand,  and  insures  to  the 
benefit  of  his  co-sureties  aud  principal,  and  is  a  bar  to  any 
action  which  may  be  brought  against  him  or  them  therefor. 
Ireland  v.  Tapscott,  68  N.  0.  R.  300. 

0.  Where  A  having  a  bond  against  principal  and  surety, 
and  a  member  of  a  firm  to  which  A  is  indebted,  who  is  the 
yon  of  the  principal  of  the  bond,  agrees  to  take  the  bond  and 
credit  A's  account,  which  is  done,  and  where  A  said  he  un- 
derstood it  to  be  a  payment,  and  where  the  Judge  who  tried 
the  cause  refused  to  charge  jury  that  if  A  understood  it  to 
be  a  payment,  it  was  a  payment  and  they  must  so  find  :  held, 
to  be  do  errror.     Brem  v.  Allison,  68  N.  0.  E.  412. 

7.  When  a  matter  is  voluntarily  settled  by  act  of  the  par- 
ties, in  the  absence  of  fraud  or  mistake,  it  must  be  deemed 
settled  forever.  Therefore,  where  the  county  court  of  a 
county,  in  the  year  1802,  appointed  an  agent  to  borrow  money 
aud  purchase  salt  for  the  families  of  soldiers  then  in  the  Con- 
federate army,  and  in  18C7,  ordered  the  agent  to  pay  to  the 
person  from  whom  the  money  was  borrowed  a  certain  sum, 
which  was  done,  the  Board  of  Commissioners  of  such  county 
cannot  recover  back  the  money  so  paid  by  the  agent.  Com* 
m-is  of  Catawba  v.  Setter,  70  K  0.  R.  426. 

8.  Where  a  debtor  owes  several  debts  to  a  creditor  and 
makes  payments,  he  may  appropriate  such  payments  to  any 
of  the  debts  he  pleases ;  if,  however,  he  fails  to  do  so  at  the 
time,  the  creditor  may  appropriate  them  as  he  pleases,  at 
any  time  before  suit  is  brought;  therefore,  where  such  debts 
are  partly  secured  by  a  mortgage  of  personal  property  for  an 
amount  insufficient  to  pay  all  the  debts,  aud  the  debtor 
makes  no  application  of  his  payments  as  they  are  made,  the 
creditor  is  at  liberty  to  appropriate  such  payments  to  such 
part  of  the  debts  as  is  unsecured,  and  to  hold  the  property 
mortgaged  liable  for  the  unpaid  balance.  Jenkins  &  Co.  v. 
2fcaZ,"  70  N.  C  E.  440. 


PAYMENT.— PENITENTIARY.— PERJURY.    357 

9.  A  receipt  for  a  certain  sum,  in  payment  of  a  lost  or 
mislaid  note,  discharges  only  so  much  of  said  note  as  such 
receipt  amounts  to.  Witherington  v.  Phillips,  70  N.  0.  R. 
444. 

10.  A  claim  for  services  alleged  to  be  illegal,  when  once 
adjusted  and  allowed  by  the  parties  in  a  settlement,  cannot 
be  set  aside  for  its  alleged  illegality,  when  presented  by  de- 
fendant as  a  set-off  to  the  demand  of  the  plaintiff's  assignee. 
Lush  v.  Patton,  70  N.  C.  R.  701. 


PENITENTIARY. 

The  State  is  bound,  under  the  act  of  18G9-'70,  to  pay  the 
expenses  of  conveying  couvicts  to  the  penitentiary.  The  act 
of  1870-'71,  chapter  124,  does  not  repeal  the  former  act  in 
this  respect.     Taylor  v.  Adams,  66  N.  0.  R.  338. 

See  (Office  and  Officer,  18,  19.) 


PERJURY. 

1.  Although  one  believes  the  allegation  to  which  he  tes- 
tifies to  be  true,  yet  unless  he  has  probable  cause  for  such 
belief,  he  may  be  convicted  of  perjury.  State  Y.Knox,  PhiL 
L.  R.  312. 

2.  In  an  indictment  for  perjury,  where  the  defendant  is 
charged  with  having  been  sworn  ''on  the  Holy  Gospels  of 
God,"  and  it  appeared  that  he  was  not  sworn  as  charged,  such 
variance  is  fatal  and  will  entitle  defendant  to  a  new  trial. 
State  v.  Mat.  Davis,  69  N.  0.  R.  383. 

3.  In  a  criminal  action  for  perjury,  it  should  appear  on 
the  face  of  the  indictment  that  the  oath  taken  was  material 
to  the  question  depending,  not  by  setting  forth  the  circum- 
stances which  render  it  so  in  describing  the  proceedings  of  a 
former  trial,  but  a  general  allegation  that  the  particular 
question  became  material.     State  v.  Davis,  69  N.  0.  R.  495. 

4.  In  an  indictment  for  perjury,  the  question  whether  or 
not  one  of  she  parties  charged  with  an  affray  in  the  indict- 
ment, upon  the  trial  of  which  the  oath  alleged  as  false  was 
taken,  retreated  "thirteen  or  twelve  paces"  before  he  returned 
the  blows  of  the  other  party,  is  a  material  question,  the 
"  thirteen  or  twelve  paces"  being  mere  surplusage.     So  too, 


358 


PERJUBY.— PLEADING— I. 


is  the  question  whether  or  not  one  of  said  parties  was  stricken 
"  two  or  three  times"  before  striking  the  other  party,  the 
number  of  times  being  surplusage,  where  an  averment  of  a 
blow  would  have  sufficed.     State  v.  BolMtt,  70  1ST.  0.  R.  81. 

5.  An  averment  that  the  defendant  "deposed  and  gave  in 
evidence  to  the  jury  wilfully  and  corruptly,"  amounts  to  a 
charge  that  he  swore  wilfully  and  corruptly.     Ibid. 

6.  A  traversejjin  an  indictment,  pursuing  the  words  of  the 
defendant  in  taking  the  oath  is  sufficient  in  an  indictment  for 
pei  jury.     Ibid. 


PLEADING. 


I. 

General  principles  of  pleading. 

VIII. 

II. 

Verification. 

IX. 

III. 

Parties. 

X. 

IV. 

Form  of  action. 

XI. 

V. 

Joinder  of  causes  of  action. 

XII. 

VI. 

Plea  of  nul  tiel  record. 

XIII. 

VII. 

Under  the  Code  of  Civil  Proced- 
ure. 

XIV. 

Of  the  complaint  or  declaration 

Of  the  pleas  and  demurrer. 

Plea  of  a  former  suit. 

Counter-claim. 

Of  the  venue. 

Of  the  verdict  and  judgment. 

What  is  cured  by  a  verdict. 


I.     GENERAL  PRINCIPLES  OF  PLEADING. 


1.  In  case  of  ambiguity  and  uncertainty  in  pleading,  the 
words  are  to  be  taken  most  unfavorably  to  the  party  using 
them.     Wright  v.  McCormick,  67  N.  0.  R.  27. 

2.  That  there  may  be  some  certainty  in  judicial  proceed- 
ings, the  Supreme  Court  will  not  for  a  moment  entertain  the 
consideration  of  a  judgment  in  favor  of  a  plaintiff  given  upon 
a  state  of  facts  not  alleged  in  the  complaint,  and  inconsistent 
therewith.     Shelton  v.  Davis,  69  N.  C.  R.  234. 

3.  The  rule  that  a  person  cannot  take  advantage  of  an 
allegation  of  fraud,  unless  it  be  made  in  the  pleadings,  does 
not  apply  to  a  case  agreed  where  all  the  facts  are  stated,  and 
the  matters  of  law  or  legal  inference  left  to  the  Court.  Mc- 
Rae,  et  al.  v.  Battle,  Ex'r,  69  N.  C.  R.  98. 

4.  The  answer  of  a  defendaut  in  an  action  of  slander,  al- 
leging that  he  did  not  speak  the  words  as  charged,  with  ma- 
lice, &c,  but  that  he  believed  them  to  be  true,  stating  his 
reasons  for  such  belief;  and  further,  that  he  did  not  admit 
that  the  words  alleged  to  be  slanderous  were  spoken  within 
six  months  of  the  time  of  bringing  the  action,  amount  under 
our  liberal  system  of  pleading,  to  the  pleas  of  justification, 


PLEADING— II.— HI-  359 

and  the  statute  of  limitation.    Moore  v.  Edmiston,  70N.C. 
E.510 

See  (Pleading— Form  of  Action.) 

n.     VERIFICATION. 

A  pleading  which  is  amended  in  a  material  part  after  veri- 
fication, is  to  be  regarded  as  unverified;  therefore,  where 
such  pleading  was  a  complaint,  an  answer  thereto  need  not 
be  verified.     Rankin  v.  Allison,  64  N.  0.  E.  673. 

HI.    PARTIES. 

1.  It  is  not  necessary  to  make  the  administrator  of  the 
deceased  a  party  to  a  bill  preferred  by  the  next  of  kin  against 
the  University,  to  recover  property  which  had  improperly 
been  paid  over  to  that  institution.  Oliveira  v.  University, 
Phil.  Eq.  E.  69. 

2.  Where  a  bill  charged  that  the  defendant  had  bought 
land  upon  a  parol  agreement  that  another  (the  deceased  hus- 
band of  one  of  the  complainants,  and  the  ancestor  of  the 
others,)  should  share  in  such  purchase  :  held,  that  the  admin- 
istrator of  that  other  person  was  not  a  necessary  party  to 
such  bill.     Ferguson  v.  Hass,  Phil.  Eq.  E.  113. 

3.  In  a  suit  for  a  legacy  to  the  sole  and  separate  use  of  a 
feme  covert,  the  husband  is  not  a  proper  party  plaintiff.  Bar- 
ham  v.  Gregory,  Phil.  Eq.  E.  249. 

4.  It  being  admitted  in  the  answer  of  executors  sued  for 
a  pecuniary  legacy  that  there  are  assets  sufficient  to  pay  the 
complainant  and  the  other  pecuniary  legatees,  the  latter  are 
not  necessary  parties.     IMd. 

5.  Where  it  is  contended  by  the  executors  that  a  pecu- 
niary legacy  is  payable  in  Confederate  notes  on  hand  at  the 
death  of  the  testator,  the  residuary  legatees  should  be  made 
parties  in  a  bill  by  the  pecuniary  legatee  seeking  the  pay- 
ment of  his  legacy  (at  par)  in  the  currency  of  the  United 
States.     Ibid. 

6.  One  who  acted  under  color  of  an  appointment  by  the 
Governor,  (made  by  virtue  of  Eev.  Code,  en.  99,  sec.  14,  hut 
after  its  repeal,)  having  brought  suit  in  the  name  ot  the  State 
against  a  defaulting  tax  payer :  held,  to  be  no  ground  for 
dismissing  it  at  the  instance  of  the  defendant,  that  it  be  pur- 
ported to  be  filed  "  on  the  relation  "  of  such  person.  State 
v.  McGalliard,  Phil.  Eq.  E.  346. 

7.  Distinction  stated  between  suits  in  the  name  of  the 
State  to  the  use  of  a  citizen  where  the  latter  is  the  real 


360  PLEADING— III. 

party,  and  such  suits  where  the  State  alone  is  interested  and 
some  citizen  is  named  in  connection  with  it  merely  for  the 
purpose  of  securing  costs.     1  bid. 

8.  An  action  at  law  upon  a  note  payable  to  B,  agent  of 
A,  brought  before  the  adoption  of  the  present  Code,  should 
have  beeu  in  the  name  of  B,  as  plaintiff,  and  not  in  that  of 
A.     Savage  v.  Carter,  64  N.  0.  R,  196. 

9.  It  is  improper  to  join  the  Treasurer  of  the  State  with 
the  Auditor  in  an  application  for  a  writ  of  mandamus,  65  K". 
0.  R.  637. 

10.  Where  a  note  was  given,  and  made  payable  to  A,  as 
guardian,  and  it  was  afterwards,  in  settlement,  delivered  to 
the  husband  of  the  ward  without  endorsement :  held,  that  a 
suit  upon  said  note  was  properly  brought  in  the  name  of  the 
guardian,  to  the  use  of  the  husband  and  his  wife.  Mebane 
v.  Mebane,  66  N.  C.  R.  334 

11.  A  trustee  may  sue  in  his  own  name,  or  he  may  join 
his  cestui  que  trust ;  and  the  trust,  between  guardian  and 
ward,  may  be  kept  alive  after  a  settlement,  if  they  so  choose, 
without  any  purpose.     Ibid. 

12.  The  survivor  of  two  joint  guardians  may  sue  on  a  note 
payable  to  such  guardians,  as  such,  and  on  his  death,  pen- 
dente lite,  the  suit  is  properly  revived  in  the  name  of  his  per- 
sonal representative,  as  executor  or  trustee  of  an  express 
trust,  under  sec.  37,  C.  0.  P.,  notwithstanding  that  the  wards 
have  arrived  at  full  age  and  the  note  was  assigned  by  the 
plaintiff  to  one  of  them.  Biggs  v.  Williams,  66  N.  0.  R.  427. 

13.  Where  a  contract  was  made  for  the  sale  of  land,  and 
a  bond  was  given  to  make  title  upon  the  payment  of  the  pur- 
chase money,  and  a  portion  of  the  purchase  money  being  un- 
paid, an  action  was  brought  by  the  vendor  against  the  ven- 
dee, to  sell  the  lands  for  payment  of  the  balance  due:  held, 
that  in  such  action,  the  wife  of  the  vendee  was  not  a  proper 
party,  if  the  marriage  took  place  prior  to  March  2d,  1867; 
aliter,  if  the  marriage  took  place  subsequent  to  that  time. 
Bunting  v.  Fog,  66  K  0  R.  193. 

14.  In  an  action  for  an  account  against  an  executor,  the 
personal  representative  and  not  the  children  of  a  deceased 
legatee,  should  be  made  a  party.  Hagler  v.  McComhs,  66 
H.  O.R.  345. 

15.  Where  a  guardian  lent  trust  funds  to  a  firm  of  which 
he  was  a  member,  and  took  their  note  payable  to  himself,  al- 
though under  the  old  system  he  could  not  sue  at  law,  under 
the  present  system,  by  virtue  of  the  conjunction  of  law  and 
equity,  a  civil  action  upon  such  instrument  may  be  maintain- 
ed.    Gudger  v.  Baird,  66  N.  0.  R.  438. 


PLEADING— III.  361 

16.  Independent  of  this  view,  relief  under  the  C.  0-  P.,. 
sec.  249,  is  obtainable  on  the  principle  that  the  cestui  que 
trust  may  follow  the  trust  fund  into  whose  hands  soever  the' 
funds  may  be  found.     Ibid. 

17.  Nor,  in  a  suit  on  such  note  by  the  husband  of  the 
ward,  to  whom  it  had  been  assigned  by  the  guardian,  can  it 
be  objected  that  the  guardian  is  not  made  party,  as  by  virtue 
of  sec.  63,  0.  0  P.,  persons  severally  liable  may  all  or  any  be 
included  as  defendants.    Ibid. 

18.  The  objection  that  one  of  the  wards  is  not  made  a* 
party,  induces  the  Court  to  modify  the  judgment  of  the  Court 
below.     Ibid. 

19.  Under  the  C.  C.  P.,  one  who  holds  a  note  as  trustee 
of  an  "  express  trust,"  may  bring  an  action  upon  it  in  his 
own  name,  with  or  without  joining  the  cestui  que  trust. 
Davidson  v.  Elms,  67  N-  C.  R.  228. 

20.  An  objection  for  want  of  proper  parties  should  be  ta- 
ken by  demurrer.     C.  C  P.  sec.  95.     Ibid. 

21.  In  a  civil  action,  in  the  nature  of  a  bill  in  equity,  for 
an  account  and  settlement  of  a  trust  estate,  in  behalf  of  three 
feme  plaintiffs,  it  is  a  misjoinder  to  make  other  plaintiffs  who 
are  not  embraced  by  the  trust ;  and  likewise  a  misjoinder  to- 
make  one  a  defendant  who  has  no  concern  with  the  manage- 
ment of  the  trust  fand.  Hutchinson  v.  Boberts,  67  N.  C.  R. 
223. 

22.  In  an  acction  upon  a  guardian  bond  brought  in  the 
name  of  the  State,  upon  the  relation  of  the  Solicitor  of  the 
District,  it  is  too  late  to  object  in  this  court,  that  it  should 
have  been  brought  in  the  name  of  the  wards ;  and  when  the 
complaint  in  such  actions  hows  it  is  really  in  the  name  of 
such  wards  against  the  guardian  and  the  sureties  on  his  bond, 
there  is  no  ground  of  objection  to  the  form.     State  v.  Peebles, 

67  N.  C.  R  97. 

23.  The  real  owner  of  a  negotiable  note,  not  indorsed,  is 
the  proper  person  to  sue  for  its  recovery,  under  sec.  55,  of 
the  Code  of  Civil  Procedure.    Andrews,  AdnVr.  v.  McDaniel, 

68  N.  C.  R.  385. 

24.  In  a  suit  by  an  administrator  to  recover  the  amount 
of  a  note  given  to  a  former  administrator  {pendente  lite)  of 
the  same  intestate,  it  is  no  error,  for  the  Judge  of  the  Supe- 
rior Court  to  order  such  administrator  pendente  lite  to  be 
made  a  party,  if,  in  his  discretion,  it  be  necessary  to  a  proper 
determination  of  the  case.  Dancy,  Adm7r.  v.  Smith,  etui., 
68  N.  C.  R,  179. 

25.  The  Court  below  has  the  power  to  amend  the  plead- 


362  PLEADING— III.— IV.  . 

ings,  by  acldiug  the  Dame  of  any  party,  who  may  be  necessary 
to  a  full  determination  of  the  cause.  Johnston  v.  Neville,  68 
N".  G.  E.  177. 

26.  A  Judgment  is  rendered  on  a  note  against  the  maker, 
B,  a  citizen  of  Cumberland,  in  favor  of  the  payee,  A,  a  citi- 
zen Lenoir  ;  the  judgment  is  assigned,  and  after  assignment, 
0,  also  a  citizen  of  Lenoir,  writes  his  name  across  the  back 
of  the  note.  In  a  suit  by  the  assignee  against  B  and  0  on 
the  judgment:  held,  that  B  and  L  were  improperly  joined  in 
the  action :  held  further,  that  if  O's  name  had  been  stricken 
from  the  process  the  Justice  had  no  jurisdictisn.  Wooten  v. 
Maultsbij,  69  K  0.  E.  462. 

27.  In  a  suit  upon  an  administration  bond,  the  next  of 
kin  of  the  intestate  are  not  necessary  parties,  0.  0.  P.,  sec. 
17,  and  in  such  a  suit,  the  administrator  of  the  principal  in 
the  bond  need  not  be  joined.  Black  v.  Dawson,  69  N.  0.  E. 
42- 

28.  Under  the  0.  0.  P.,  the  failure  to  join  a  proper  party 
is  an  important  matter,  but  the  joinder  of  the  unnecessary 
parties,  either  as  plaintiffs  or  defendants,  is  immaterial,  save 
only  as  it  may  affect  the  question  of  costs.  Rowland,  et  al. 
v.  Gardner,  69  N".  C.  E.  53. 

29.  The  misjoinder  of  unnecessary  parties,  either  as  plain- 
tiffs or  defendants,  is  merely  surplusage,  and  under  the  lib- 
eral system  of  pleading  introduced  b>  our  Code  of  Civil  Pro- 
cedure, is  not  a  fatal  objection.  Green  v.  Green,  69  IS".  C.  E. 
204. 

See  (Bankruptcy,  5.)     (Partition,  5 ) 

IV.     FORM  OF  ACTION. 

1.  Delt  is  the  proper  form  of  action  upon  a  bond  for  the 
payment  of  a  specified  sum  of  money  "  in  specie  or  its  equiv- 
alent," where  the  plaintiffs  seeks  to  recover  the  sum  speci- 
fied.    Rhyne  v.  Wacaser,  63  N".  C.  E.  36. 

2.  Under  the  old  system,  if  the  declaration  is  in  case,  and 
it  does  not  further  appear  whether  the  action  is  in  tort  or 
contract,  it  will  be  regarded  as  ambiguous  or  doubtful  plead- 
ing.    Hughes  v.  Wheeler,  65  N.  C.  E.  418. 

3.  Where  the  defendant  understood  the  action  to  be  in 
tort,  and  the  plaintiff  did  not  disclaim  it,  but  offered  evidence 
to  establish  a  breach  of  contract,  such  action  cannot  be  sus- 
tained.    Ibid. 

4.  The  object  of  the  Code  was  to  abolish  the  different 
forms  of  action  and  the  technical  and  artificial  modes  of 


PLEADING— IV.— V.  363 

pleading  used  at  common  law,  but  not  to  dispense  with  such 
degree  of  certainty,  regularity  and  uniformity,  as  are  deemed 
essential  in  every  system  adopted  for  the  administration  of 
justice.     Oates  v.  Gray,  66  N".  C  R.  442. 

5.  The  pleadings  must  contain  the  same  substantial  cer- 
tainty, now,  as  was  formerly  requisite  in  a  declaration,  &c, 
and  unless  the  deiendant  controverts  the  facts  alleged,  they 
must  be  taken  as  true  for  the  purposes  of  the  action. — 0.  0. 
P.,  127.     Ibid 

6.  The  word  "  plead"  used  in  the  Act  of  1868-H59,  chap. 
76,  sec.  4,  must  be  regarded  as  an  inadvertence,  and  was  not 
intended  to  change  the  Code  system.     Ibid. 

7.  An  entry  on  the  docket  of  "  general  issue,  stat.  lim., 
with  leave,"  is  not  sufficient  pleading,  and,  in  the  discretion 
of  the  Judge  below,  would  authorize  judgment  of  nil  dicit. 
Ibid. 

8.  When  an  agent,  without  authority  to  execute  a  bond 
for  his  principal,  hired  slaves  for  the  principal,  and  gave  bond 
signed  by  him  as  agent,  with  security  :  held,  that,  according 
to  the  practice  before  the  adoption  of  the  0.  C.  P.,  assumpsit 
would  lie  against  the  principal,  while  debt  or  covenant  would 
lie  against  the  surety  on  the  bond.  Holland  v.  Clark,  67 
N.  C.  R.  104. 

9.  The  distinction  between  forms  of  action  having  been 
abolished  by  the  Constitution,  it  would  defeat  the  purpose  of 
that  provision  if  a  party  were  allowed  to  avail  himself  of  an 
objection,  founded  upon  such  distinction.  Oates  v.  Kindall, 
67  N.  0.  R.  241. 

10.  Therefore,  when  a  plaintiff,  in  his  complaint,  alleged 
and  set  out  a  case  in  trover,  and  the  proof  showed  that  it 
should  have  been  in  the  nature  of  assumpsit  for  money  had 
and  received :  it  was  held,  that  the  plaintiff  was  entitled  to 
recover,  notwithstanding  the  variance.     Ibid. 

V.     JOINDER  OF  CAUSES  OF  ACTION. 

1.  A  plaintiff  cannot  join  in  the  same  complaint  a  count 
{or  cause  of  action)  in  contract,  against  one  of  two  defendants, 
with  a  count  (or  cause  of  action)  on  the  fraud  of  the  both. 
N.  C.  Land  Co.  v.  Beatty,  69  N".  0.  R.  329. 

2.  Any  number  of  causes  of  action  belonging  to  any  one 
of  the  classes  enumerated  in  section  129,  of  the  Code  of  Civil 
Procedure,  may  be  united,  provided  they  all  affect  the  par- 
ties, but  no  two  belonging  to  different  classes.     Ibid 


364  PLEADING— VI.— VII. 


VI.     PLEA  OF  NUL  TIEL  RECORD. 


When  one  is  sued  individually,  upon  a  judgment  obtained 
against  hiui  years  since  as  administrator,  and  wishes  to  take 
advantage  of  such  variance,  he  should  plead  mil  tiel  record. 
By  pleading  to  the  merits  he  waives  the  objection.  Purvis 
v.  Jackson,  69  N.  C.  R.  474. 

VII.    UNDER  THE  C.  C.  P. 

1.  The  rules  of  pleading,  at  common  law,  have  not  been 
abrogated  by  the  0.  0.  P,  The  essential  principles  still  re- 
main, and  have  only  been  modified  as  to  technicalities  and 
matters  of  form.  The  effect  of  pleading,  both  in  the  old 
and  new  system,  is  to  produce  proper  issues  of  law  or  fact, 
so  that  justice  may  be  administered  between  parties  litigant 
with  regularity  and  certainty.  Parsley  v.  Nicholson,  65  1ST. 
C  E.  207. 

2.  Every  material  allegation  of  a  complaint  which  is  de- 
nied by  the  answer  must  be  sustained  in  substance  by  proofs  ; 
and  though  a  plaintiff  may  prove  a  cause  of  action,  he  can- 
not recover  upon  it  unless  it  be  alleged  substantially  in  his 
complaint.     Ibid. 

3.  When  the  pleadings  fail  to  present  an  issue,  the  only 
course  is  to  strike  out  all  the  pleadings,  and  direct  a  "  re- 
pleader.    Sumner  v.  Young,  65  N.  0.  E.  579. 

4.  When  a  party  in  a  proceeding  introduces  new  matter 
not  contained  in  his  complaint,  and  supports  it  by  his  own 
or  other  affidavits,  the  opposite  party  is  entitled  of  right  to 
be  heard  in  reply  to  such  new  matter  by  his  affidavit,  or  the 
affidavits  of  others  ;  and  the  right  thus  to  reply  to  new  mat- 
ter introduced  on  either  side  is  only  restricted  by  that  rule 
in  pleading  which  forbids  a  departure.  King  v.  Winants, 
68  N.  0.  R.  63. 

5.  In  action  of  the  nature  of  trespass  quare  clausum 
/regit,  it  is  not  necessary  to  describe  the  land  entered  upon, 
by  metes  and  bounds.     Whitaker  v.  Forbes,  68  N.  0.  R.  228. 

6.  Under  our  new  system  of  pleading  and  practice,  courts 
are  required  to  recognize  both  the  legal  and  equitable  rights 
of  the  parties,  and  to  frame  their  judgments  so  as  to  deter- 
mine all  the  rights  of  the  parties  as  well  equitable  as  legal.. 
Hutchinson  v.  Smith,  68  N.  0.  R.  334. 

See  (Pleading- -Pleas  and  Demurrer.) 


PLEADING— VIII.  365 

VIII.     OF  THE  COMPLAINT  OR  DECLARATION. 

1.  Where  the  existence  of  a  feet  at  a  particular  time  is 
important  to  a  party,  he  must  make  a  distinct  allegation  in 
regard  to  it  in  his  pleading.  Donnell  v.  Cooke,  63  X.  C-  E.  227. 

2.  Parties  seeking  to  be  excused  from  the  ordinary  con- 
sequences of  their  action,  by  reason  of  special  circumstances, 
must  exhibit  candor  and  particularity  in  their  statements 
concerning  it.     Ibid. 

3.  The  right  of  a  plaintiff  to  relief  must  always  be  limited 
by  his  own  statements  in  the  pleadings  of  his  grounds  for 
complaint.     Love  v.  Cobb,  63  X.  C.  E.  324 

4.  Whether  in  a  complaint  for  the  recovery  of  realty,  it  is 
sufficient  to  allege  that  the  defendants  are  in  possession  of 
the  locus  in,  quo,  and  withhold  the  possession  thereof  from 
plaintiff.     Quere?     Garrett  v.  Trotter,  65  X.  0.  E.  430. 

5.  Assuming  that  the  complaint  is  defective,  advantage 
ought  to  have  been  taken  thereof  in  "  apt  time,"  and  it  can- 
not be  considered  "  apt  time,"  to  have  filed  an  answer  to  the 
merits,  and  make  the  objection  at  the  trial  term.     Ibid. 

6.  Such  a  complaint  is  sufficient,  and  the  defect,  if  any,  is 
aided  by  the  defendants'  answer,  which  shows  that  they  un- 
derstood the  complaint  to  charge  an  illegal  withholding  of  the 
possession.     Ibid. 

7.  The  doctrine  of  aider,  express  or  implied,  and  the  prin- 
ciples applicable  to  defective  pleading  discussed  and  explain- 
ed.    Ibid. 

8.  In  an  action  to  recover  the  possession  of  specific  prop- 
perty,  the  object  in  describing  the  property  is  to  let  the  de- 
fendant know  what  is  claimed,  so  that  he  may  give  up  the 
property,  or  contest  the  claim  of  plaintiff.  Johnson  v.  Neville, 
65  X.  0.  E,  677. 

9.  Wheu  a  defendant  is  uncertain  as  to  what  is  claimed 
in  an  action  for  the  recovery  of  specific  property,  the  Court, 
upon  motion,  will  require  plaintiff  to  give  a  more  particular 
description,  so  as  to  remove  all  uncertainty.     Ibid. 

10.  Though  a  complaint  has  not  been  filed  in  proper  time, 
the  Judge  may,  in  his  discretion,  permit  it  to  be  filed  after- 
wards.    Brendle  v.  Heron,  68  X.  0.  E.  496. 

1 1.  Where  the  complaint  (which  was  verified)  in  an  action 
by  the  indorsee  against  the  maker  of  a  promissory  note  stated 
the  indorsement,  but  omitted  to  allege  that  it  was  for  value 
received,  and  the  defendant  demurred  to  the  complaint  for 
Buch  omission  :  it  was  held,  that  the  demurrer  was  frivolous, 
and  that,  as  there  was  no  answer,  the  plaintiff  was,  upon  mo- 


366  PLEADING— IX. 

tion,  entitled  to  judgment  for  the  amount  of  the  principal  and 
interest  of  the  note.     (Hayton  v.  Jones,  68  N.  0.  R.  497. 
See  (Pleading — Of  the  verdict  and  judgment,  15.) 

IX.     PLEAS  AND  DEMURRERS. 

1.  A  demurrer  for  matters  of  substance  should  be  general, 
and  not  set  out  the  grounds  of  objection.  A  demurrer  for 
matters  of  form,  should  set  out  the  grounds,  but  not  an  ar- 
gument to  sustain  the  objection.  Harrington  v.  McLeany 
Phil.  Eq.  R.  258. 

2.  A  demurrer  bad  as  to  part  is  bad  as  to  all.  Lattimore 
v.  Dickson,  64  N.  0.  R.  356. 

3.  Under  the  Code,  if  a  demurrer  by  the  defendant  be 
overruled,  judgment  is  to  be  given  as  if  no  defence  had  been 
made,  (sees.  217,  243,)  unless  the  defendant  obtain  leave  to 
plead  over,  (sec.  131.)     Ransom  v.  McClees,  64  N.  0.  E.  17. 

4.  If  a  party  answer  and  also  demur  to  the  same  cause  of 
action,  the  answer  overrules  the  demurrer  ;  but  pleadings  in 
which  a  party  answers  to  some  and  demurs  to  others  of  the  al- 
legations made  in  support  of  any  one  cause  of  action,  are  erro- 
neous :  sec.  96  of  the  Code  applies  only  where  a  complaint  or 
answer  contains  several  causes  of  action,  or  grounds  of  de- 
fence.    1  bid. 

5.  A  demurrer  under  the  0.  0.  P.  differs  from  the  former 
demurrer  at  law  in  this ;  every  demurrer,  whether  for  sub- 
stance or  for  form,  is  now  special,  and  must  distinctly  specify 
the  ground  of  objection  to  the  complaint,  or  be  disregarded ; 
it  differs  from  the  former  demurrer  in  equity,  in  that  the 
judgment  overruling  it  is  final,  and  decides  the  case  ;  unless 
the  pleadings  are  amended,  by  leave  to  withdraw  the  demur- 
rer and  put  in  an  answer.  Love  v.  Comni'rs  of  Chatham,  64 
N".  0.  R.  706. 

6.  The  provisions  of  the  0.  0.  P  ,  sec.  99,  as  regards  com- 
plaints which  do  not  contain  facts  sufficient  to  constitute  a 
cause  of  action,  are  satisfied  by  arresting  the  judgment  in  cases 
where  they  apply.     Ibid. 

7.  A  demurrer  to  complaint,  "because  it  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action,"  must  be  dis- 
regarded, for  not  distinctly  specifying  the  grounds  of  objec- 
tion.    Ibid. 

8.  Under  the  plea  of  the  general  issue,  in  an  action  of 
debt  upon  bond,  evidence  of  the  illegality  of  the  consideration 
is  inadmissible.     Brower  v.  Hughes,  64  N.  0.  R  542. 

9.  Courts  will  not  readily  decide  an  answer  to  be  "frivi- 


PLEADING— IX.  367 

lous :"  oue  by  which  it  is  intended  to  raise  a  serious  question, 
ex.  gr.,  the  effect  of  an  endorsement  by  three  out  of  four  exe- 
cutors, of  a  note  payable  to  their  testator,  is  not  frivolous. 
Erwin  v.  Bowery,  64  N.  0.  R.  321. 

10.  In  a  suit  upon  a  contract  made  prior  to  the  adoption 
of  the  0.  C.  P.,  if  the  defendant  demur  for  want  of  parties 
in  the  Superior  Court,  aud  the  demurrer  be  sustained  and 
the  plaintiff  appeals  to  this  Court,  the  plaintiff  wil^be  enti- 
tled to  a  final  judgment  here  upon  the  overruling  of  the 
demurrer.     Merwin  v.  Ballard,  65  N.  C.  R.  168. 

11.  The  pendency  of  a  former  action  between  the  same 
parties,  for  the  same  cause,  is  a  good  defence  in  a  second  ac- 
tion.    Harris  v.  Johnson,  65  N.  C.  R.  478. 

12.  In  such  a  case  at  common  law,  advantage  must  be 
taken  thereof  by  a  plea  in  abatement.  Under  the  C.  C.  P., 
advantage  must  be  taken  by  answer,  if  the  complaint  does 
not  show  the  pendency  of  such  former  action.     Ibid. 

13.  Whatever  is  alleged  in  the  complaint,  and  not  denied 
in  the  answer,  need  not  be  proved.  Jenkins  v.  N.  C.  Ore  D. 
Co.,  65  K  0.  R.  563. 

14.  Where  there  is  but  one  cause  of  action,  or  but  one 
defence,  a  demurrer  must  cover  the  whole  ground,  otherwise 
it  will  be  a  nullity.     Sumner  v.  Young,  65  N".  C.  R.  579. 

15.  Where  several  pleas  are  pleaded  to  the  same  cause 
of  action,  each  is  as  separate  and  independent  as  if  contained 
in  different  records.     Sumner  v.  Chipman,  65  N.  C.  R.  623. 

16.  Under  the  C  C.  P.,  a  defendant  may  avail  himself  of 
any  defence  that  would  have  been  available  under  the  old 
mode  of  procedure,  either  in  court  of  law  or  court  of  equity. 
Clark  v.  Clark,  65  N.  C.  R.  655. 

1 7  When  an  action  of  trespass  vi  et  armis  was  commenced 
before  the  adoption  of  the  C.  C.  P.,  and  tried  since  that  time 
upon  the  plea  of  the  general  issue,  it  was  held  that  the  de- 
fendant, not  having  availed  himself  of  the  right  of  objecting 
to  the  non-joinder  of  a  plaintiff  by  demurrer  or  plea  under 
the  95th  and  98th  sections  of  the  C.  C  P.,  cannot  do  so 
under  the  plea  of  the  general  issue.  Lewis  v.  McNatt,  65 
N.  C  R.  63. 

18.  A  demurrer  for  want  of  jurisdiction  can  only  be  sus- 
tained, where  the  want  of  jurisdiction  appears  upon  the  face 
of  the  complaint.  Bank  of  Charlotte  v.  Britton,  66  N.  C.  R. 
365. 

19.  A  demurrer  to  the  jurisdiction  of  the  Superior  Court 
will  not  be  sustained,  where  it  appears  in  the  complaint,  that 
the  note  sued  on  was  for  $200,  notwithstanding  said  note 
may,  prima  facie,  be  subject  to  the  legislative  scale.     Ibid. 


368  PLEADING— IX. 

20.  If  the  defences  set  up  in  an  answer  are  worthy  of 
consideration,  they  cannot  be  deemed  frivolous.  Sivepson  v. 
Harvey,  66  N.  0.  E.  436. 

21.  In  such  case  the  plaintiff  should  reply  or  demur,  and 
if  the  demurrer  be  overruled,  it  becomes  the  duty  of  the 
Judge  to  allow  him  to  plead  over,  unless  it  is  manifest  that 
such  demurrer  is  frivolous,  does  not  raise  any  question  of  law 
worthy  of  serious  consideration,  and  is  interposed  merely  for 
delay.     Ibid. 

22.  The  spirit  and  intent  of  the  Code  is,  that  actions  shall 
be  tried  as  speedily  and  cheaply  as  possible  upon  their 
merits.     Ibid. 

23.  An  answer  to  a  complaint  on  a  covenant  for  the  pay- 
ment of  money,  executed  by  the  defendants,  and  alleged  to 
have  become  the  property  of  the  plaintiff  by  successive  as- 
signments, which  alleges  that  there  was  a  condition  under- 
written said  covenant,  to  make  it  void  if  the  land  for  which 
the  covenant  was  given,  was  subject  to  incumbrances,  and 
that  at  the  time  of  the  execution  of  the  same,  said  land  was 
subject  to  the  lien  of  an  execution  against  the  covenantee, 
and  further,  that  the  assignment  of  the  covenant  from  the 
covenantee  was  procured  by  duress  and  fraud,  and  while  the 
covenantee  was  mentally  incapacitated  to  contract,  and  that 
the  plaintiff  took  his  assignment  with  full  knowledge  of  these 
facts,  and  that  the  plaintiff  had  caused  a  previous  action  on 
the  same,  in  the  name  of  the  covenantee,  to  be  brought, 
which  had  been  dismissed,  and  had  filed  a  bill  to  compel  the 
covenantee  to  allow  the  use  of  his  name  for  that  purpose, 
which  had  also  been  dismissed,  and  that  afterwards  the  de- 
fendant had,  after  a  full  account  with  the  covenantee,  pro- 
cured his  release  of  the  cause  of  action  :  held,  that  such  de- 
fences are  not  frivolous,  but  are  worthy  of  serious  considera- 
tion.    Ibid. 

24.  The  "Act  to  suspend  the  Code  of  Civil  Procedure  in 
certain  cases,"  ratified  March  16th,  1869,  does  not  repeal 
§116,  G.  0.  P.,  so  as  to  allow  of  "  pleas"  without  verification. 
Haywood  v.  Bryan,  63  N.  0.  R.  521. 

25.  An  answer  which  avers  that  "  no  allegation  of  the 
complaint  is  true,"  is  not  a  compliance  with  the  0.  0.  P.,  sec. 
100,  (Bat.  Bev.,  ch.  17,  sec.  100)  which  requires  that  the 
answer  must  contain  "  a  general  or  specific  denial  of  each 
material  allegation  ;"  that  is,  it  must  deny  either  the  whole 
of  each  material  allegation,  or  some  material  or  specific  part 
thereof.  Such  answer  is  a  sham  plea,  and  ought  to  be  stricken 
out  on  motion,  as  provided  in  0.  0.  P.,  sec.  104.  (Bat.  Eev. 
ch.  17,  sec.  104.)     Flack  v.  Davidson,  69  K".  G.  E.  42. 


PLEADING— IX— X  —XI.  369 

27.  A  plea  that  the  court  bad  no  jurisdiction  of  the 
action  is  sham  plea.  The  objection  to  the  jurisdiction  must 
be  taken  by  demurrer. — 0.  C.  P.,  sec.  85,  sub-sec.  1.     Ibid. 

28-  A  plea  alleging  the!  want  of  parties  is  sham  plea, 
as  the  objection  ought  to  be  taken  by  demurrer. — 0.  0.  P., 
sec.  95,  sub-sec.  4.     Ibid. 

29.  A  plea  in  answer  to  a  complaint  on  au  administra- 
tion bond  of  "  performance  of  the  condition  of  the  bond  by 
payment  to  the  next  of  kin,"  is  good  in  substance,  and  an 
issue  may  be  taken  upon  it;  and  such  issue  is  the  subject  of 
a  compulsory  reference  under  the  0.  0.  P.,  sec.  215,  sub-sec.  1. 
Ibid. 

30.  The  rule  of  law  that  a  person  cannot  take  advantage 
of  au  allegation  of  fraud  unless  it  be  made  iu  the  pleadings, 
does  not  apply  to  a  case  agreed  where  all  the  facts  are  stated, 
and  the  matters  of  law  or  legal  inference  left  to  the  court. 
McRae  v.  Battle,  69  X  G.  R.^98. 

See  (Slander,  1,  2,  3.) 

X.     PLEA  OF  A  FORMER  SUIT. 

1.  A  suit  in  our  former  courts  of  equity  by  A,  the  equit- 
able assignee  of  a  bond  against  B,  the  assignor,  to  compel  B 
to  allow  the  use  of  his  name  in  a  suit  at  law  against  D,  the 
obligor  in  the  bond,  which  suit  was  dismissed,  is  no  bar  to  a 
suit  by  A,  the  party  in  interest,  under  the  uew  system  against 
D.     Swepson  v.  Harvey,  69  X.  G.  R  387. 

2.  Xor  does  the  fact  that  after  the  equity  suit  was  dis- 
missed, D  haivng  notice  of  the  equitable  assignment,  paid 
off  the  bond  to  B,  affect  A's  right  to  recover.     Ibid. 

3.  A  plaintiff  having  an  action  pending,  cannot  maintain 
a  second  action  against  the  same  defendant  for  the  same 
cause.  Such  pending  action  should  be  pleaded  in  abate- 
ment.     Woody  v.Jordan,  69  X.G.  E.  189. 

4.  But  a  judgmeut  in  an  action  brought  to  recover  cer- 
tain property  specifically  is  no  bar  to  a  subsequent  action 
between  the  same  parties  seeking  to  recover  damages  for  the 
taking  and  conversion  of  such  property.     Ibid. 

See  (Pleading — Pleas  and  Demurrer,  11,  12.) 

XI.     COUNTER-CLAIM. 

1.     A  creditor  of  one  deceased,  by  note,  (there  being  no 
other  debt  of  equal  or  higher  dignity,)  became  purchaser  at 
a  sale  by  the  administratrix,  and  gave  bond  on  that  account, 
24 


370  PLEADING— XI. 

(in  an  amount  less  than  that  of  his  claim,)  and  this  bond  con- 
stituted the  whole  assets  of  the  estate ;  after  the  bond  be- 
came due,  the  administratrix,  who,  with  her  sureties,  was 
then  insolvent,  assigned  it  by  endorsement,  for  value,  to  one 
who  was,  to  a  small  amount,  creditor  of  the  estate  by  account: 
held,  that  the  creditor  by  note  was  entitled  to  bring  in  his 
debt,  by  a  counter-claim,  against  an  action  upon  his  bond, 
whether  by  the  administratrix  or  her  assignee.  Ransom  v. 
Mctlees,  64  N.  0.  R.  17. 

2.  Arguendo:  It  teems,  that,  under  the  present  Code, 
his  right  would  be  the  same,  even  if  the  administratrix  had 
not  been  insolvent.     Ibid. 

3.  Where  lessors  sued  lessees  for  rent:  held,  that  the  lat- 
ter were  entitled,  as  a  counter-claim,  to  show  that  the  lessors 
had  no  right  to  make  the  lease,  and  that  the  real  owners- 
thereof  had  brought  suit  against  one  of  the  lessees,  and  would 
recover  damages  for  its  use  during  such  lease.  McKesson  v. 
MendenhaU,  04  N.  C.  R.  280. 

4.  In  such  case  the  persons  claiming  as  real  owners,  should 
be  made  parties  to  the  action.     Ibid. 

5.  Where  a  vendor  of  land  brings  an  action  for  possession 
against  his  vendee,  who  has  been  let  into  possession,  the  title 
being  reserved :  the  latter  may  set  up  the  contract  of  sale, 
and  ask  for  an  account  of  the  payments  upon  the  purchase 
money,  by  counter-claim  in  the  same  action.  Pearsall  v. 
Mayers,  04  N  0.  R.  549. 

6.  Under  the  0.  0.  P.,  a  covenant  not  to  sue  the  defend- 
ant may  be  made  available  by  the  latter,  by  way  of  counter- 
claim, to  defeat  an  action  brought  in  violation  thereof.  Har- 
sliaw  v.  Woodjin,  04  N.  0  R.  508. 

7.  The  defence  of  sef-off  as  heretofore  administered  in  the 
State  has,  by  the  0.  0.  P.,  been  merged  in  that  of  counter- 
claim, the  effect  of  which,  in  one  respect,  is,  that  a  defendant 
is  not  allowed  to  oft-set  the  claim  of  a  plaintiff  as  assignee  of 
a  note  past  due  when  assigned,  by  showing  that  the  assignor 
was  indebted  to  such  defendant  at  the  time  of  the  assign- 
ment ;  unless  such  counter-claim  had  attached  itself  to  the 
note  before  the  assignment,  ex.  qr ,  hj  an  agreement  that  it 
should  be  applied  thereto,  or  otherwise.  Neal  v.  Lea,  04  N. 
0.  R.  078. 

8.  Where  a  horse  is  exchanged  for  land,  and  having  after- 
wards returned  to  the  possession  of  the  original  owner,  the 
latter  is  sued  for  it,  the  allegation  in  the  answer,  that  the 
defendant  had  agreed  to  exchange  the  horse  for  the  tract  of 
land  on  a  certain  creek,  adjoining  his  own,  and  that  the  plain- 


PLEADING— XI.  371 

tiff  had  falsely  and  fraudulently  asserted  title  to  said  tract, 
and  had  exhibited  a  deed  to  himself,  for  a  tract  on  the  same 
creek,  and  the  plaintiff  well  knew  that  the  defendant  was  only 
desirous  of  obtaining  title  to  the  particular  tract  indicated  by 
him,  and  such  was  a  material  inducement  to  the  exchange, 
would  not  have  been  available,  as  a  defence  under  the  former 
system,  and  but  for  the  wise  and  beneficent  provisions  of  the 
0.  0.  1'.,  the  defendant  would  have  been  driven  to  a  separate 
action;  but  such  a  statement  under  the  0.  0.  P.,  does  con- 
stitute a  good  counterclaim,  within  the  meaning  of  the  Code. 
Walsh  v.  Hall,  66  N.  0.  E.  233. 

9.  The  stipulations  contained  in  a  contract  in  these 
Mords,  viz:  "A  B  contracts  with  0  and  D  to  furnish,  at 
Long  Creek  Furnace,  from  500  to  1000  bushels  of  coal  daily, 
at  6^  cents  per  bushel,  to  be  measured  at  the  pit ;  0  D  to 
furnish  the  timber  gratis  wherever  he  may  see  fit,  reserving 
groves  and  fruit  trees,  aud  advance  to  A  B  all  the  money, 
weekly,  necessary  to  pay  oft  the  wood-choppers — coal  to  be 
paid  for  on  delivery  at  the  furnace,"  are  dependent,  and  if, 
without  fault  on  the  part  of  the  owner  of  the  furnace,  and 
without  legal  excuse,  the  other  fails  to  deliver  the  quantity 
of  coal  agreed  to  be  delivered,  the  owner  of  the  furnace  being 
sued  for  the  value  of  the  coal,  &c,  furnished,  may  properly 
set  up  such  failure  by  way  of  counter-claim.  Burton  v. 
Wilkes,  66  X.  C.  R.  604. 

10.  In  an  action  based  upon  such  contract,  where  it  ap- 
peared that  there  had  been  a  failure  to  deliver  500  bushels  of 
coal  on  any  da}',  and  that  the  defendant  had  failed  to  make 
as  much  iron,  in  consequence  of  such  failure,  as  he  otherwise 
would  have  done,  a  charge  which  does  not  allude  to  the 
counterclaim,  based  upon  the  foregoing  facts,  until  attention  is 
called  to  the  omission,  and  which  then  merely  states  "  that  if 
the  plaintiff  failed  to  perform  his  coutract  he  could  not  re- 
cover, and  that  if  defendant  failed  he  could  not  recover,  is 
erroneous,  and  especially  in  this  case  where  there  seems  to  be 
no  controversy  as  to  the  plaintiff's  claim,  and  the  main  point 
of  the  controversy  is  as  to  the  defendant's  counterclaim. 
I  hid. 

11.  A  is  sued  by  the  executrix  of  B,  on  a  note  given  for 
the  purchase  of  land  sold  by  the  executrix  for  assets;  on  the 
trial  A  offers  a  set-off  a  judgment  paid  by  him  as  B's  surety: 
held,  in  administrations  granted  prior  to  1st  of  July,  1800, 
not  to  be  a  counterclaim.  McLean  v.  Leach,  et  al.  08 
N.  O.  K  05. 

12.  A  defendant  is  not  bound  to  assert  a  set  off  or  coun- 


372  PLEADING— XI.— XII. 

terclaim  in  an  action  brought  against  him  whenever  he  tnay 
do  so ;  nor  does  the  plaintiff's  recovery  bar  a  subsequent 
action  for  such  counter-claim,  which  the  defendant  might 
have,  but  did  not  plead  in  the  original  action.  Woody  v. 
Jordan,  69  X.  0.  E.  189. 

13.  In  a  suit  brought  on  a  penal  bond,  given  by  a  hus- 
band to  make  title  to  his  wife's  laud  a  note  given  by  the  pur- 
chaser to  the  wife  to  induce  her  to  perfect  the  title  by  sub- 
mitting to  a  private  examination,  cannot  be  used  as  a  set-off 
or  a  counter-claim.     Utley  v.  Foy,  70  X.  0.  E.  303. 

See  (Covenant,  4.)     (Set-off— At  Law,  6,  7,  8.) 


XII.     VENUE. 


1.  The  venue  in  an  action  against  a  Eailroad  Company, 
can  be  laid  only  iu  the  same  county  wherein  the  track  of  its 
road,  or  some  part  thereof,  is  situated ;  actions  brought 
otherwise  are  to  be  dismissed.  Graham  v.  R-  R.  Co.,  64  X. 
C.  E.  631. 

2.  The  parties  spoken  of  iu  the  acts  defining  venue,  are 
the  parties  to  the  record  ;  therefore,  no  objection  can  be  made 
on  account  of  venue,  by  pleading  and  showing  that  the  party 
on  whose  behalf  a  suit  is  brought,  and  the  defendant  therein, 
are  citizens  of  another  county  than  that  in  which  suit  was 
brought.     Rankin  v.  Allison,  64  X.  C.  E.  673. 

3.  An  answer  setting  forth  that  B  is  the  real  owner  of 
the  note  sued  upon,  but  that  it  was  assigned  to  the  plaintiff, 
is  to  be  taken  as  meaning  that  the  plaintiff  is  trustee  of  an 
express  trust,  and  so  is  properly  plaintiff.  (C.  C.  P.,  sec.  57 
and  58.)     I  hid. 

4.  Venue  may  be  waived  by  the  consent  of  parties,  but 
they  connot  confer  jurisdiction  on  a  Court  by  consent.  Leach 
v.  W.  N.  C.  R.R,  65  X.  C.  E.  486. 

5.  The  Act  of  the  General  Assembly  of  1868-'69,  chap. 
251,  requiring  that  the  venue  iu  actions  against  Eailroad 
Companies,  shall  be  laid  in  some  county  wherein  the  track 
of  said  railroad,  or  some  of  it  is  situated,"  is  not  in  conflict 
with  sec  7,  art  1,  ot  the  Constitution.  The  jurisdiction  of 
of  the  courts,  and  the  venue  of  actions,  have  always  been 
subjects  of  legislation.  Kingsbury  v.  Chatham  R.  R.  Co., 
66  X.  C.  E.  284. 

6.  The  "  repeal  of  a  statute  shall  not  effect  any  suit 
brought  before  the  repeal,  for  any  forfeiture  incurred,  or  for 
the  recovery  of  any  rights  acciuing  under  such  statute." 
Eev.  Code,  ch.  108,  sec.  1.     Ibid. 


PLEADING— XII.  373 

7.  The  question  as  to  where  a  case  ought  to  be  tried,  is 
preliminary  to  the  trial,  and  must  be  determined  by  the 
Judge.  And  this  question  can  be  as  well  tried  on  a  motion 
to  dismiss,  (the  facts  being  verified  by  affidavits)  as  upon  a 
plea  to  the  jurisdiction.     lhid. 

8.  An  action  by  the  holder  of  certain  notes  given  for  the 
purchase  of  land  against  the  purchaser  of  the  land  and 
others,  to  be  subrogated  to  the  rights  of  the  vender,  in  the 
contract  of  sale  of  the  laud,  which  is  substantially  the  same 
as  an  action,  "for  the  foreclosure  of  a  mortgage  of  real  es- 
tate," must  be  tried  in  the  county  in  which  the  land  is  situ- 
ate. Code  of  Civil  Procedure,  sec.  GG.  Fraleij  v.  March, 
G8  N".  C.  E.  1G0. 

9.  When  a  summons  has  been  served,  and  the  complaint 
filed,  the  case  is  pending  sufficiently  to  entitle  a  party  to  re- 
move it  to  an  adjoining  Judicial  District,  if  the  presiding 
Judge  is  a  party  to  the  suit.— Act  of  1870-'71,  ch.  20.  Car- 
ter v.  W.  N.  C  Railroad,  G8  N.  C  E.  34G. 

10.  Under  the  Act  of  18(>8-'G9,  ch.  248,  an  administrator 
or  executor  must  be  sued  as  such  iu  in  the  county  in  which 
he  took  out  letters  of  administration  or  letters  testamentary, 
provided  he  or  any  of  his  sureties  lives  in  that  county,  whether 
he  is  sued  upon  his  bond,  or  simply  as  administrator  or  exe- 
cutor.    Stanley  v.  Mason,  G9  N.  C.  E.  1. 

11.  Suits  against  the  Board  of  County  Commissioners 
ought  to  be  brought  in  the  county  in  which  they  are  Com- 
missioners (C.  C.  P.,  sec.  G7.)  Rodman,  ./.,  dissenting. 
Jones  v.   Commissioners  of  Bladen,  G9  N.  C.  B.  412. 

12.  The  Acts  of  1870-'71,  ch.  42,  sees.  1  and  2,  (Bat. 
Rev.,  ch.  18,  sees.  1  and  2),  and  of  1871-72,  ch.  45,  do  not 
change  the  venue  of  any  actiou  ;  and  therefore,  actions 
against  a  Board  of  County  Commissioners  must  be  brought 
iu  the  county  of  such  Commissioners.  Steele  v.  Commis- 
sioners of  Rutherford,  70  N.  C.  E.  137. 

13.  In  an  action  against  the  Board  of  Commissioners  of 
one  county,  brought  to  the  Superior  Court  of  an  adjoining 
county,  objection  to  the  venue  must  be  taken  in  that  court; 
otherwise,  the  objection  will  be  considered  as  waived.  Ed- 
wards v.  Commissioners  of  Wilkes,  70  N.  C.  E.  571. 

14.  Actions  against  a  Board  of  County  Commissioners 
must  be  brought  to  the  Superior  Court  of  the  county  wherein 
those  Commissions  reside.  Commissioners  of  Henderson  v, 
Contmissio}tcrs  of  Rutherford,  70  N".  0.  B   b'57. 


374  PLEADING— XIII. 

XIII.     OF  THE  VERDICT  AND  JUDGMENT. 

1.  A  verdict  "that  one  note  shall  off-set  the  other," 
where  the  defendant's  note  is  the  larger,  is  a  verdict  for  the 
defendant.     Ransom  v.  McClees,  64  N.  0.  R.  17. 

2.  A  judge  is  not  bound  to  take  for  granted,  (at  the  sug- 
gestion of  counsel,  based  upon  the  form  of  the  verdict)  that 
the  jury  did  not  understand  his  instructions,  and  therefore 
to  repeat  them.     Ibid. 

3.  Submitting  to  a  jury  issues  upon  points  not  necessa- 
rily decisive  of  the  case,  and  requiring  verdicts  in  the  form 
of  neither  general  nor  special  verdicts,  is  irregular.  Henry 
v.  Rich,  64  N.  0.  R.  379. 

4.  Where  a  party  desires  to  ascertain  upon  what  partic- 
ular points  the  verdict  goes,  he  ought  to  request  the  court 
to  put  such  question  to  the  jury  before  it  is  rendered.  Kings- 
l)u ry  v.  Gooch,  64  K  0.  R.  528. 

5.  Although,  in  some  cases,  a  jury  may  correct  a  mis- 
carriage on  the  part  of  the  Court  by  finding  a  proper  verdict ; 
yet,  in  no  case  will  a  suggestion  that  the  Court  has  found  a 
fact  truly,  atone  for  such  invasion  by  it  of  the  province  of 
of  the  jury.     Howard  v.  Beatty,  64  N.  0.  R.559. 

6.  A  verdict  for  ''four  hundred  dollars  in  old  bank  money, 
interest  from  the  27th  of  May,  1863,  scaled  at  value  at 
time," — is  too  uncertain  to  warrant  a  judgment  thereupon. 
Crews  v.  Crews,  64  N.  C.  R.  536. 

7.  Where  a  jury  returned  a  verdict  for  the  plaintiff  u  for 
$51.60,  subject  to  an  off-set  of  $26  80,  if  said  off-set  had  not 
already  been  paid  ;  but  if  it  had  been  paid,  then  for  $51.60, 
without  off-set,"  it  is  proper  to  render  the  judgment  for 
$51.60,  and  to  reject  the  balance  as  surplusage.  Hawkins 
v.  House,  65  N.  C.  R.  615. 

8.  In  an  action  of  debt  upon  a  bond  for  a  certain  sum  of 
money,  to  which  the  defendant  has  plead  the  general  issue, 
usury  and  fraud,  if  the  jury  render  a  verdict,  which  is  re- 
c rived  by  the  clerk  in  the  absence  of  the  Court,  that  they 
find  all  the  issues  in  favor  of  the  plaintiff,  and  assess  his 
damages  at  (the  sum  mentioned  in  the  bond)  principal  money 
without  interest,  the  only  redress  which  the  judge  can  give 
the  plaintiff,  is  to  set  aside  the  verdict  and  grant  a  new 
trial.  He  cannot  render  a  judgment  upon  such  verdict 
lor  the  principal  of  the  bond  and  the  lawful  interest  thereon. 
Houston  v  Potts,  65  K  C  R.  41. 

9.  If  a  jury  persist,  in  the  presence  of  the  court,  in  rei.- 


PLEADING— XIII.— XIV.  375 

dering  an  irregular  and  improper  verdict,  the  Judge  may  set 
it  aside  and  fine  the  jury  for  contumacy.     IMA. 

10.  When  a  jury  returns  a  verdict  which  is  insensible  and 
irresponsive  to  the  issues,  the  Judge  may,  in  his  discretion, 
allow  them  to  reform  the  same.  Lowe  v.  Towe,  07  X.  O.K. 
298. 

li.  The  issues  submitted  to  a  jury  in  an  action  upon  a 
note  given  May,  1804,  being  as  to  the  execution  of  the  note 
and  the  currency  in  which  it  was  solvable ;  held,  that  a  ver- 
dict, finding  "  all  issues  in  favor  of  the  plaintiff  for  the  value 
of  Confederate  money,"  is  sufficient  to  support  a  judgment 
for  the  amount  due  according  to  the  legislative  scale.  Mer- 
rimon  v.  Norton,  Adm'r.,  57  X.  0.  R.  115. 

12.  As  a  general  rule,  as  soon  as  the  facts  of  a  case  are 
determined,  whether  by  the  pleadings,  a  case  agreed,  a  spe- 
cial verdict,  or  a  general  verdict  subject  to  case  agreed,  it  is 
the  duty  of  the  court  haviug  jurisdiction  to  give  judgment 
upon  them,  and  if  the  case  be  in  the  Supreme  Court  upon 
appeal,  it  is  the  duty  of  that  court  to  give  such  judgment  as 
the  court  below  ought  to  have  given.  Isler  v.  Brown,  07 
X.  C  R.  175. 

13.  When  the  facts  have  been  once  determined,  provided 
there  has  been  no  irregularity  in  the  proceedings,  no  court 
has  a  right  to  deprive  the  parties  of  the  standpoint  they  have 
gained,  by  setting  aside  the  verdict  or  other  form  of  finding, 
and  re-open  the  issues  thus  regularly  concluded.     Ibid. 

14.  The  court  will  not  grant  a  certiorari  to  operate  as  a 
supercedeas,  upon  a  suggestion  that  the  record  in  the  court 
below  is  erroneous,  and  rely  upon  the  coutingenc}7  of  an 
amendment,  especially  when  the  party  has  had  ample  oppor- 
tuuitv  of  having  the  same  amended  so  as  to  speak  the  truth. 
Ibid. 

15.  When,  in  his  complaint,  the  plaintiff  demands  unli- 
quidated damages,  there  must  be  an  enquiry  to  ascertain  the 
amount  thereof.     Mayfield  v.  Jones-  70  X.  C.  It.  530. 

XIV.     WHAT  IS  CURED  BY  A  VERDICT. 

An  objection  that  the  plaintiff  should  have  filed  a  special 
instead  of  a  general  replication,  comes  too  late  after  verdict 
(Rev.  Code,  ch.  3,  s.  5)  Parish  v.  Wiihelm,  03  X.  C.  R,  51 


376        PLEADING  IX  EQUITY— I —II.— III. 


PLEADING  IN  EQUITY. 


1.    Bill  of  discovery. 
II.     Bill  to  perpetuate  testimony. 


III.  Scandal  in  pleading. 

IV.  Decree. 


I.     BILL  OF  DISCOVERY. 


1.  A  bill  had  been  filed  to  obtain  a  discovery  in  aid  of  a 
plea  of  usury,  and  the  defendant  demurred  thereto ;  after- 
wards, the  act  of  1865-'6,  c  24,  repealing  the  former  act  up- 
on usury,  and  the  act  of  1865-'0,  c.  43,  upon  the  subject  of 
evidence,  were  passed :  held,  that  the  bill  should  be  dismiss- 
ed with  costs.     McDoivell  v.  Maultsby,  Phil  Eq.  R.  16. 

2.  Although  the  language  of  a  bill  may  be  technical  and 
precise,  yet  if  upon  looking  through  it  enough  appear  to  war- 
rant relief,  it  will  not  be  dismissed.  Ferguson  v.  Hass,  Phil. 
Eq.  R    113. 

3.  A  bill  by  one  claiming  property  as  remainderman,  un- 
der a  marriage  agreement  between  his  parents,  is  not  requir- 
ed to  set  out  a  will  of  the  father  professing  to  dispose  of  prop- 
erty ;  and  the  legatees  in  the  will  should  not  be  made  defen- 
dants, the  executor  representing  the  adverse  interest  under 
the  will.     Harrington  v.  McLean,  Phil.  Eq.  R.  258. 


II.     BILL  TO  PERPETUATE  TESTIMONY. 


1.  A  bill  filed  by  the  sureties  to  a  bond  against  the  obli- 
gee, alleging  that  the  bond  is  tainted  with  usury,  the  knowl- 
edge of  which  is  confined  to  the  principal  and  the  defendant, 
and  praying  that  the  testimony  of  the  principal  be  perpet- 
uated, will  not  be  entertained  unless  the  plaintiffs  offer  to 
pay  what  they  acknowledge  to  be  really  due.  Crawford  v. 
Me Adams,  03  N.  G.  It.  67. 

2.  (Observations  by  Pearson,  C.  J.,  upon  the  distinction 
ordinarily  taken  in  this  connection,  between  bills  of  discovery 
and  bills  to  perpetuate  testimony.)     Ibid. 


III.     SCANDAL  IN  PLEADING-, 


1.  Words  however  disparaging  or  abusive,  are  not  slan- 
derous in  equity  pleading,  unless  they  be  also  impertinent 
Henry  v.  Henry,  Phil.  Eq.  R.  334. 

2.  Where  a  bill  was  filed  for  the  specific  performance  of 
an  alleged  contract,  and  instead  of  merely  setting  out  the 
contract,  and  alleging  its  non-execution  as  a  ground  for  the 


PLEADING  m  EQUITY— III.— IV.  377 

prayer,  it  recited,  by  way  of  inducement,  a  train  of  circum- 
stances which  went  to  show  ingratitude  and  baseness  on  the 
part  of  the  defendant  in  refusing  to  execute  the  contract : 
Iwld,  that  an  answer  which  set  up  as  a  defence,  that  the  con- 
tract was  a  forgery  by  the  plaintiff,  was  not  liable  to  excep- 
tion for  scandal,  for  detailing  circumstances  corroborative  of 
the  averment.     Ibid. 

3.  In  such  a  case  the  court  suggested  that  the  bill  be 
amended  by  striking  out  the  statement  of  circumstantial  evi- 
dence, and  that  thereupon  the  defendant  put  in  a  plea  deny- 
ing the  execution  of  the  contract,  so  that  an  issue  might  be 
directed  for  trial  by  a  jury  at  law.     Ibid. 

IV.     DECREE. 

1.  Final  decree  of  distribution  postponed,  owing  to  the 
state  of  the  record,  and  the  lapse  of  time  since  the  bill  was 
filed.     Nelson  v.  Blue,  63  K  0.  E.  659. 

2.  Final  decrees  in  the  late  Courts  of  Equity  can  be  im- 
peached at  present  only  by  actions,  commenced,  as  others,  by 
summons.     Covington  v.  Ingram,  64  N".  0-  E.  123. 

3.  A  petition  to  rehear  a  decree  of  this  Court,  when  the 
error  complained  of  is  one  of  fact  committed  in  making  an 
interlocutory  order  of  reference,  and  in  confirming  the  report 
made  by  the  commissioner  is  not  strictly  a  petition  to  rehear, 
but  may  be  treated  as  a  motion  to  set  aside  the  order  of  re- 
ference and  the  order  confirming  the  report,  and  the  decree 
made  pursuant  thereto.     JEason  v.  Sanders,  65  N.  C  E.  216. 

4.  When  a  rule  was  taken  upon  the  Clerk  of  the  Superior 
Court,  to  show  cause  why  he  should  not  pay  a  certain  sum  of 
money  decreed  to  be  paid  out  of  funds  in  his  hands,  it  is  no 
answer  to  the  rule  to  set  forth  facts  tending  to  show  that  the 
original  decree  was  erroneous.     Long  v.  Cole,  66  N.  C.  E.  381. 

5.  An  error  in  a  decree  canuot  be  corrected  or  reviewed 
under  a  rule  to  show  cause.  To  effect  that  purpose,  regular 
proceedings  must  be  instituted,  having  that  end  in  view.  1  bid. 

ji  Where  a  bill  in  equity  was  filed  to  foreclose  a  mortgage, 
and  a  final  decree  was  obtained,  the  defendaut,  (the  mortga- 
gor,) cannot  avail  himself,  by  a  suggestion,  in  the  nature  of  a 
plea«Giuce  the  continuance,  of  the  pendency  of  another  .suit  in 
the  District  Court  of  the  United  States  "to  force  him  into 
bankruptcy."     Wesson  v.  Johnson,  66  N.  0  E.  189. 

7.  For  1st.  It  does  not  appear  that  both  suits  were  for 
the  same  cause  of  action.  2d.  A  plea,  puis  darn  in  contin- 
uance, is  not  admissible  in  a  Court  of  Equity.     3d.  The  case 


378      PLEADING,  &C-.IV.-PLEDGE— POSSESSION. 

of  a  mortgagee  is  an  exception  to  the  general  rule,  and  he 
may  proceed  on  his  mortgage,  in  Equity,  and  on  his  debt,  at 
law.  4th.  The  matter  which  had  existed  so  long,  comes  too 
late  after  hearing  and  decree.     Ibid. 

8.  A  decree  ought  in  all,  and  must  in  cases  of  an  equity 
character,  arising  under  the  0.  0.  P.,  declares  the  facts  upon 
which  the  law  is  adjudged.  Burbank  v.  Wiley,  66  N.  C.  E.  58. 


PLEDGE. 

Although  for  the  validity  of  a  pledge  it  is  necessary  that 

possession  shall  be  given  to  the  pledgee  and  not  be  resumed 

by  the  pledgor.     This  rule  does  not  embrace  a  case  where 

the  pledge  is  re-delivered  to  the  pledgor  as  an  agent  of  the 

jpledgee.     Hose  v.  Coble,  Phil.  L.  R.  517. 


POSSESSION. 

1.  Where  one  of  two  coterminous  proprietors  of  land 
cleared  and  fenced  up  to  a  line  of  marked  trees,  believing 
that  to  be  the  dividing  line,  whereas  it  was  at  some  points  as 
much  as  twenty-five  yards  over  upon  his  neighbor's  land : 
held,  that  such  act  constituted  an  open  and  notorious  adverse 
possession  up  to  the  marked  line,  and  rendered  a  deed  made 
by  the  neighbor  during  such  possession,  for  that  part,  void. 
Mode  v.  Long,  64  N.  0.  R.  438. 

2.  Where  the  locus  in  quo  was  a  peninsula  formed  by  the 
bend  of  a  river,  and  the  question  was  as  to  the  adverse  pos- 
session of  that  land  by  the  defendant,  and  it  appeared  that  he 
ran  a  fence  partly  on  his  own  land  and  partly  on  that  of  an- 
other person,  across  the  neck  of  the  peninsula,  so  that  it 
excluded  the  cattle  of  other  persons  from  ranging  upon  it, 
except  by  crossing  the  river,  and  opened  a  gate  in  his  fence 
for  his  own  cattle  to  get  upon  it :  it  was  held,  that  the  defen- 
dant had  uo  adverse  possession  of  the  land  in  the  peninsula, 
unless  he  had  made  the  fence  across  the  neck  for  the  avowed 
aud  unequivocal  purpose  of  taking  possession  of  the  peninsula 
and  using  it  for  a  pasture  as  his  own  land.  Osborne  v.  John- 
ston, 65  N.  C.  R.  22. 

3.  When  one  in  possession  of  a  tract  of  land  conveys  the 
same  in  trust  for  the  payment  of  debts,  aud  afterwards  the 


POSSESSION— PRACTICE— I. 


379 


said  land  is  sold  at  execution  sale,  and  bought  for  the  bene- 
fit of  the  bargainor's  wife,  and  the  said  bargainor  remains  in 
possession  during  his  life  time,  and  the  wife  continues  the 
same  to  the  bringing  of  an  action  of  ejectment :  held,  that 
such  possession  is  not  adverse  to  the  trustee,  nor  to  the  pur- 
chaser at  the  sale  under  said  deed  of  trust.  McNeill  v.  Rid- 
dle, 66  X.  <J.  R.  290. 

4.  The  operations  of  building  a  shed,  quarrying  rock, 
erecting  a  lime-kiln  and  cutting  wood  to  burn  it  for  the  pur- 
pose of  making  lime  on  the  laud  in  dispute,  continued  unin- 
terruptedly for  more  than  seven  years,  constitute  such  a 
possession  as  will  give  a  good  title  to  the  person  claiming 
adversely  under  it.  Moore  v.  Thompson  et  al.,  09  N.  C.  R. 
120. 

See  (Tenants  in  common,  3.) 


PRACTICE. 


I. 

In  equity. 

XL 

II. 

Affidavits. 

III. 

Appearance. 

XII. 

IV. 

Scire  Facias. 

V. 

Discontinuance. 

XIII. 

VI. 

Non-suit. 

XIV. 

VII. 

Dismissing  a  suit,  retraxit. 

XV. 

VIII. 

Consolidating  suits. 

IX. 

Demand  of  power. 

XVI. 

X. 

Under  the  Code  of  Civil  Pi 

•o- 

XVII. 

cedure. 

XVIII 
XiX 

I. 

IN  I 

:quiTY. 

References,  motions,    orders, 

rules  and  notices. 
Some  miscellaneous  rules  of 

practice. 
Parties. 

Of  the  trial  and  its  incidents. 
Submitting  questions  of  fact 

to  the  jury. 
Judge's  charge. 
Motion  m  arrest  of  judgment. 
On  appeals. 
In  the  Supreme  Court. 


1.  Unless  the  order  for  the  trial  of  issues  before  a  jury 
so  direct*,  the  answer  of  one  of  the  defendants  in  the  original 
cause,  is  not  to  be  read  on  their  behalf  upon  such  trial. 
Jackson  v.  Harris,  03  N".  0.  R.  261. 

2.  Although  the  verdict  of  a  jury  upon  issues  which  had 
been  tried  by  them  in  obedience  of  the  order  of  a  court  of 
equity,  lie  not  binding  upon  that  court,  it  will  not  lightly  be 
disturbed.     Ibid. 

3.  The  object  of  a  reference  in  matters  of  account  is  to 
have  a  plain  and  full  statement  of  the  figures  and  facts,  so 
as  to  enable   the  parties,  on  exceptions,  to  present  to  the 


380  PRACTICE— I. 

court,  such  matters  as  may  be  controverted,  in  an  intelligible 
manner;  and  to  enable  the  court  to  dispose  of  them  without 
the  labor  of  wading  through  all  of  the  testimony,  and  in  fact 
of  trying  the  wholecase  over  again.  To  this  end,  the  master 
should  set  out  the  facts  found  by  him,  and  not  content  him- 
self with  a  general  reference  to  the  depositions.  Hurdle  v. 
Leath,  63  N.  0.  R.  366. 

4.  An  order  directing  the  surplus  proceeds  of  a  sale  of 
mortgaged  lands  to  be  paid  into  court,  cannot  be  made  in  a 
cause  to  which  the  assignee  of  the  bond  secured  has  not 
been  made  a  party.     Hyman  v..  Devereux,  63  N.  0.  R.  624. 

5.  Courts  of  equity  in  this  State  will  not  grant  new  trials 
of  issues,  sent  by  them  to  be  tried  at  law,  merely  because 
the  verdict  was  against  the  weight  of  evidence.  Peebles  v. 
Peebles,  63  N.  0.  R.  656. 

6.  Where  the  issue  sent  for  trial  was,  whether  a  certain 
conveyance  from  A  to  B,  was[in  fraud  of  0,  a  creditor  of  A, 
with  the  direction  that  0  should  be  plaintiff  in  the  issue, 
aud  A  and  B  co-defendants  :  and  upon  the  trial  declarations 
made  by  A  previous  to  the  conveyance  and  whilst  he  was  in 
possession  of  the  laud,  in  regard  to  the  state  of  the  accounts 
between  himself  and  B,  were  allowed  to  be  given  in  evidence  : 
held,  that  such  declarations  were  not  competent  as  against  B; 
also,  that  to  prevent  complications  on  a  new  trial,  A's  name 
should  be  struck  out  of  the  issue.     Ibid- 

7.  A  cause  in  equity  being  before  a  court  upon  excep- 
tions to  a  report  made  under  an  order  for  an  acccount  therein : 
held,  that  it  was  erroneous  for  the  Judge  upon  sustaining  the 
exceptions  to  proceed  to  dismiss  the  bill.  Hays  v.  Hays,  64 
K".  0.  R.  59- 

8.  A  suit  in  equity  begun  in  1867  is  to  be  governed  in 
regard  to  procedure,  by  the  laws  then  existing ;  therefore, 
where  a  bill  was  filed  to  set  aside  a  release  given  by  a  ward 
to  his  guardian,  and  for  an  account,  &c  ;  held,  that  the  Court 
had  no  power,  before  making  a  decree  to  set  aside  the  re- 
lease against  the  defendant's  will,  to  make  an  order  of  refer- 
ence, particularly  an  order  of  reference  to  hear,  try  and  de- 
termine the  issues  in  the  cause.  Douglas  v.  Caldwell,  64 
N".  C.  C.  372. 

0.  When  no  replication  is  filed  to  an  answer  in  equity, 
and  the  cause  is  set  down  to  be  heard  upon  bill  and  answer, 
the  bill  must  be  dismissed  when  the  allegations  in  it  are  not 
admitted  in  the  answer.     Carrow  v.  Adams,  65  N".  0.  R.  32. 

10.  When  an  equity  is  disclosed  in  an  answer  different 
from  that  which  is  alleged  in  the  bill,  the  plaintiff  ought  to 


PEACTICE— I— II.  381 

have  his  bill  amended  to  meet  such  state  of  facts,  and  to  ob- 
tain the  appropriate  relief.     Ibid. 

11.  Under  the  former  equity  practice  it  was  discretionary 
with  the  Chancellor  to  refer  the  issue  of  fact  to  a  jury  but  he 
could  never  refer  them  a  Master  in  Chancery,  or  a  Referee 
or  Commissioner. 

12.  Therefore  it  is  erroneous  to  refer  complicated  ques- 
tions of  fact  to  a  person  designated  by  the  court  ta  take  the 
account  and  report  to  the  court.     Ibid. 

13.  When  a  bill  is  filed  for  the  specific  performance  of  a 
contract  to  convey  a  tract  of  land,  and  the  defedaut  alleges 
that  the  tract  consists  of  two  parts,  of  which  he  admits  that 
he  is  the  owner  of  one,  but  avers  that  the  other  belongs  to 
his  wife,  and  sets  up  a  defence,  which,  if  good,  applies  to  the 
whole  contract,  it  is  erroneous  to  make  a  decree  if  favor  of 
the  plaintiff  as  to  the  part  of  which  the  defendant  admits  he 
is  the  owner,  and  reserve  the  question  as  to  the  other  part. 
Sivepson  v.  Bouse,  Go  1ST.  C.  R.  34. 

14  Where  no  final  decree  has  been  rendered  in  a  suit  in 
the  late  court  of  equity,  it  must  be  proceeded  in  according  to 
the  practice  of  courts  of  equity  existing  when  our  present 
Constitution  was  adopted.  Greene  v.  Moore,  06  R.  N.  C. 
425. 

15.  Under  the  former  system,  orders  and  decrees  in  such 
suits  could  oulv  be  made  in  term  time.     Ibid. 

16.  Under  the  former  system  if  an  equity  cause  was  set 
down  for  hearing  upon  the  bill,  answer,  proofs,  reports,  ac- 
counts, exceptions,  &c,  the  Chancellor  might  himself  find 
the  facts  and  pronounce  the  law  thereupon,  and  was  not 
bound  to  adopt  the  facts,  reported  by  the  clerk  and  master, 
nor  to  confirm  the  repoot,  though  no  exceptions  were  filed 
thereto.  McMillan,  Adm'r  v.  McNeill  et  al.,  69  N.  C  R. 
129. 

17.  The  presiding  Judge,  under  the  old  equity  practice, 
might  or  might  not  submit  issues  to  a  jury,  as  he  saw  fit ; 
and  might  sustain  or  disregard  the  finding  of  the  jury  on 
such  issues  as  he  thought  best.  Pearson  v.  Caldwell,  70 
N.  C.  R.  291. 

II.     AFFIDAVITS. 

An  affidavit  amended  by  order  of  the  court  must  be  re- 
sworn to  after  amendment,  or  it  will  be  considered  as  no 
affidavit.    Atlantic  Bank  v.  Franlcford,  Phil.  L.  R.  199. 


382  PEAOTICE— III— IV. 

III.  APPEARANCE. 

The  stay  law  of  September,  1861,  under  which  a  defen- 
dant was  "not  compelled  to  plead  for  twelve  months  from  the 
return  term,"  did  not  excuse  him  from  entering  an  appear- 
ance at  such  return  term,  and  then  asking  for  time  to  plead. 
Crawford  v.  Bank  of  Wilmington,  Phil.  L.  E.  13G. 

IV.  SCIRE  FACIAS. 

1 .  A  writ  of  scire  facias  upon  a  judgment  in  a  county  court, 
notwithstanding  the  Stay.  Law  of  September,  1861,  will  not 
lie  except  in  the  court  in  which  the  judgment  is.  Griffis  v. 
McNeill,  Phil.  L.  E.  175. 

2.  Where  a  writ  of  scire  facias  upon  a  judgment  in  a 
county  court  had  been  brought  to  a  Superior  Court :  held, 
that,  notwithstanding  the  Stay  Law  of  the  Convention  of 
1806,  it  should  be  dismissed  at  the  costs  of  the  plaintiff. 
Ibid. 

3.  The  ordinance  of  the  Convention  of  June,  1866,  enti- 
tled "An  ordinance  to  change  the  jurisdiction  of  the  courts 
and  the  rules  of  pleading  therein,"  is  general,  and  applies  to 
writs  of  sci.  fa.  from  the  Supreme  Court,  as  well  as  those  from 
the  county  to  the  Superior  Courts.  Bingham  v.  Richardson , 
Phil.  L.  E.  315. 

4.  The  plaintiff  in  a  sci.  fa ,  under  sec.  29,  ch.  45  of  the 
Eev.  Code,  must  show  himself  to  be  the  party  aggrieved  by 
the  default  in  question :  therefore,  where  the  defendant 
therein  pleaded  mil  tie!  record,  and  the  presiding  Judge,  hav- 
ing found  that  the  writing  upon  record  was  as  follows  :  "that 
the  defendants  [to  the  original  suit]  are  the  tenants  of  the 
plaintiff  [therein],  and  are  guilty  of  the  trespass  declared 
upon  in  the  declaration  of  ejectment,  and  assess  the  plain- 
tiff's damage  to  a  penny,  and  that  the  clerk's  office  have 
judgment  and  execution  for  the  plaintiff's  costs ;"  there- 
upon, also  found  the  issue  in  favor  of  the  plaintiff  in  the  sci. 
fat:  held,  to  be  error,  as  the  record  showed  no  judgment  in 
favor  of  such  plaintiff  Simpson  v.  Simpson,  63  ET.  C.  E. 
534. 

5.  Where  a  scire  facias  tested  at  May  Term  1868,  had 
been  issued  to  enforce  a  judgment  nisi  at  that  term  against 
a  Sheriff  for  not  making  due  return  of  process  :  held,  to  have 
been  the  appropriate  remedy.  Thompson  v.  Berry,  64  N.  C. 
E.  81. 

See  (Executors  and  Administrators — Of  their  liability  to 
creditors,  25,  26,  27.) 


PEACTIOE— V—  VI  —  VII.  383 

V.     DISCONTINUANCE. 

A  petition  for  a  public  road  having  been  carried  by  appeal 
from  the  County  to  the  Superior  Court,  the  Judge  made  a 
decree  in  favor  of  the  petitioners,  and  thereupon  ordered  a 
procedendo  to  it-sue  to  the  county  court:  held,  that  although 
the  latter  part  of  this  judgment  was  erroneous,  and  the  court 
should  have  ordered  a  writ  to  issue  from  its  own  office,  yet, 
inasmuch  as  the  parties  had  obeyed  it,  and  carried  the  case 
back  into  the  county  court,  the  petition  was  thereby  discon- 
tinued; and.  therefore,  that  after  several  years  of  other  unsuc- 
cessful litigation  in  the  case  had  occurred  in  both  courts,  the 
petitioners  could  not  resort  to  the  judgment  above  mentioned 
and  move  for  an  order  to  summon  a  jury  to  lay  out  the  road. 
Caldwell  v.  Paris,  Phil.  L.  R  54. 

See  (Process,  12. ) 

VI.     NON-SUIT. 

1.  In  defence  to  an  action  upon  a  note,  the  defendants, 
by  way  of  counterclaim,  alleged  that  it  was  given  to  the 
plaintiffs  for  rent  of  a  tract  of  land,  and  that  other  parties, 
claiming  such  land  by  title  paramount  to  that  of  the  plain- 
tiffs, had  sued  one  ot  the  defendants,  seeking  damages  for  its 
occupation  during  the  time  for  which  the  note  was  given; 
and  thereupon,  by  order  of  the  court,  the  owners  were  made 
plaintiffs  to  the  suit ;  the  original  plaintiffs  then  elected  to  be 
non-suited  :  held,  upon  an  appeal  by  the  interveners  from 
this  judgment  of  non-suit,  that  they  had  a  right  to  take  a 
non-suit;  that  althoug  non-suited,  the  action  would  go  on  for 
the  interveners,  and  the  persons  non-suited  would  be  bound 
by  the  result  of  the  suit,  as  privies  thereto.'  McKesson  v. 
Hunt,  04  K  C.  K.  502. 

2.  A  plaintiff  may  elect  to  be  non-suited  in  every  case 
where  no  judgment,  other  than  for  costs,  can  be  recovered 
against  him  by  the  defendant,  and  when  such  judgment  may 
be  recovered,  he  cannot.     Hid. 

3.  The  defendants  had  a  right  to  ask  for  a  bond  for  costs 
from  the  interveners,  as  the  parties  non-suited  ceased  to  be 
liable,  except  partially.     Hid. 

VII.     DISMISSING  A  SUIT,  RETRAXIT,  60. 

1.  An  entry  of  the  words  "settled  and  dismissed,  costs 
paid  into  office,  received  tax  fee,  J.  L.  II ,  A'tty,"  made  by  a 
plaintiff  upon  the  appearance  docket,  before  the  return  term 


384  PRACTICE— VII.— VIII— IX. 

of  the  suit,  does  not  amount  to  a  retraxit;  aud  an  order,  at 
the  return  term,  to  strike  out  was  proper.  JEagin  v.  Mus- 
grove,  Phil.  L.  R  13. 

2.  The  provision  of  the  5th  section  of  an  ordinance  enti- 
tled ''An  ordinance  to  change  the  jurisdiction  of  the  courts, 
&c,"  in  regard  to  the  dismission  of  pending  writs  of  sci.  fa., 
cannot  be  taken  advantage  of  without  motion  :  therefore, 
where  the  defendant  failed  to  make  any  defence  to  a  sci.  fa., 
and  thereupon  judgment  was  given  against  him:  held,  that 
such  judgment  was  regular  and  valid.  Kingsbury  v.  Hughes, 
Phil.  L.  R.  328. 

3.  By  Pearson,  C.  J. :  A  suit  brought  by  a  person  in  the 
character  of  a  tax  payer,  ou  behalf  himself  and  all  other  tax 
payers  in  the  State,  when  once  entertaiued  by  the  courts,  is 
not  to  be  dismissed  by  the  plaintiff  without  an  order  of  the 
court  first  had  and  obtained.  Me  Aden  v.  Jenkins,  64  N.  C. 
R.  796. 

4.  Though  a  Judge  of  the  Superior  Court  may  refuse  a 
motion  made  by  the  defendant  to  dismiss  a  suit  upon  a 
grouud  which  appears  upon  the  record,  yet  he  may  entertain 
a  like  motion  at  a  subsequent  term,  aud  dismiss  the  cause 
upon  the  same  ground.     Love  v.  Young,  69  N.  C.  R.  65. 

VIII.     CONSOLIDATING  SUITS. 

The  refusal  of  the  judge  below  to  consolidate  several  actions 
brought  to  recover  the  amount  of  certain  bills  issued  by  a 
bank,  the  defendant,  where  it  did  not  appear  that  the  bills 
sued  on  were  all  of  like  character,  aud  omitted  under  the  same 
circumstances,  was  right,  and  the  defendant  was  not  entitled 
to  a  new  trial  on  account  of  such  refusal.  Glenn  v.  Farmers7 
Bank  of  N.  C,  70  N.  C.  R.  191. 

IX.  DEMAND  OF  POWER  OF  ATTORNEY. 

1.  A  defendant  has  a  right  at  the  return  term  of  a  summons 
in  an  action  to  demand  of  the  plaintiff's  c  >uusel,  his  authority 
for  entering  an  appearance.  Rev.  Code,  chap.  31,  sec.  57, 
Rule  16.     Reed  v.  Heed,  m  ST.  C.  R.  377. 

2.  If  the  demand  for  the  power  of  attorney  be  made  at  the 
return  term,  it  is  the  practice,  and  within  the  discretion  of 
the  Judge,  to  extend  the  time;  if,  however,  such  demand  is 
not  made  at  the  proper  time,  and  before  the  right  to  appear 
has  been  recognized,  it  comes  too  late  ;  unless  there  be  parti- 
cular circumstances  tendiug  to  excuse  the  party  for  not  mak- 
ing it  in  apt  time.     1  bid. 


PRACTICE— IX.— X.  385 

3.  When  the  pleadings  have  been  made  up,  and  the  case 
called  for  trial,  it  is  too  late  for  the  defendant  to  demand  of 
the  plaintiff's  attorney  his  authority  for  appearing.  Rowland, 
et  al.,  v.  Gardner,  69  N.  C.  R.  53 

X.     UNDER  C.  C.  P. 

1.  Actions  pending  at  the  time  of  the  ratification  of  the 
Code,  are  to  be  proceeded  with  and  tried  under  such  laws  and 
rules  then  existing  as  may  be  practicable:  therefore,  in  such 
actions  a  "counterclaim"  is  not  admissible.     Teague  v.  James, 

63  X.  C.  R.  91. 

2.  Suits  pending  at  the  time  of  the  adoption  of  the  Code 
are  to  be  proceeded  in  and  tried  under  the  then  existing  laws 
and  rules  applicable  thereto  ;  therefore,  in  an  ejectment  which 
was  then  pending  the  defendant  has  no  right  to  have  relief 
because  of  a  "  counterclaim  "  under  a  bond  for  title  from  the 
plaintiff.     Gaitlier  v.  Gibson,  63  X.  C.  R.  93. 

3.  The  word  "actions,"  in  the  first  line  of  paragraphs  3 
aud  4,  in  sec.  8,  of  the  Code  of  Civil  Procedure,  is  in  the  ob- 
jective case,  and  is  governed  by  the  preposition  "  to,"  in  the 
first  line  of  the  section  ;  therefore  the  words  'l  but  such  ac- 
tions" must  be  supplied  in  each  paragraph  immediately  pre- 
ceding the  verb  "  shall  be  governed,"  in  the  fifth  line  of  the 
former,  and  the  fourth  line  of  the  latter  paragraph.  Smith 
Mclhvaine,  63  X.  C  R.  95. 

4.  Actions  commenced  after  the  adoption  of  the  Code 
upon  contracts  not  embraced  in  the  Stay  Law  Ordinance, 
must  be  brought  before  the  clerk.     Ibid. 

5.  Actions  upon  contracts  entered  into  before  the  ratifi- 
cation of  the  Code  must  be  returned  before  the  clerk.  Swep- 
son  v.  Harvey,  63  X.  C.  R.  106. 

6.  Where,  at  the  time  that  a  motion  for  a  procedendo  to 
the  county  court  was  made  in  the  Superior  Lourt,  the  motion 
should  have  been  granted,  and  in  the  interval  betweeu  that 
time  and  the  time  when  the  case  was  decided  in  the  Supreme 
Court,  the  county  courts  had  been  abolished :  held,  that  as 
the  Court  was  not  informed  whether  the  record  of  the  case 
had  been  transferred,  the  only  order  practicable  was,  that 
the  case  be  remanded  to  the  Superior  Court,  in  order  that 
the  plaintiff  might  take  such  steps  as  he  might  be  advised. 
Aycock  v  Harrison,  63  X.  C.  R.  145. 

7.  Causes  under  the  Code  cannot  be  "set  for  hearing  and 
transferred"  to  this  Court;  they  fan  come  up  only  by  appeal. 
Wadsivorth  v.  Davis,  X.  C.  R.  251. 


25 


386  PEAOTICE— X.— XI. 

8.  As  the  Code  of  Civil  Procedure  does  not  provide  for 
writ  of  recordari,  until  further  legislation  the  courts  must  be 
governed  iu  respect  to  that  writ  by  the  rules  of  the  common 
law.     Marsh  v.  Williams,  63  X.  0.  R,  371. 

9.  Suits  pending  at  the  time  of  the  adoption  of  the  Code 
of  Civil  Procedure  are  not  governed  in  practice  by  such 
Code ;  therefore  any  set-off  claimed  by  a  defendant  therein 
must  be  a  legal  one,  and  such  as  could  have  been  enforced 
in  Courts  of  law  heretofore.  Vallentine  v.  Holloman,  63  X. 
C.  E.  475. 

10.  Writs  of  summons  issued,  in  January,  1869,  should 
have  been  returnable  before  the  Clerk,  and  therefore  it  made 
returnable  before  the  Judge  at  Spring  Term,  1869,  on  motion 
by  the  defendant  to  that  effect,  should  have  been  dismissed. 
Since  then  the  act  of  April  1,  1869,  "to  amend  certain  irre- 
gularities," &c,  allows  such  errors  to  be  cured  by  amend- 
ment, &c.     Johnson  v.  Judd,  63  1ST.  C.  R.  498. 

XI.     REFERENCES,  MOTIONS,  ORDERS,  RULES  AND  NOTICES. 

1.  Where  a  prima  facie  case  is  made  against  a  sheriff, 
either  upon  affidavit  or  other  sufficient  proof,  a  rule  nisi  is 
granted,  as  of  course.     Schenck,  Ex  parte,  63  X.  C.  R.  601. 

2.  Certain  expressions  iu  an  affidavit — relied  upon  as  im- 
pairing its  effect :  held,  to  be  surplusage.     Ibid. 

3.  Perhaps,  no  notice  of  a  motion  is  required,  where  cases 
have  come  on  regularly  for  trial  at  a  term  of  the  Court.  Er- 
xvin  v.  Lowery,  64  1ST.  C.  R.  321. 

4.  In  a  case  involving  the  settlement  of  a  complicated  ac- 
count, the  C.  C.  P.  (see  sections  245  and  246)  requires  that 
it  be  referred  to  referees  to  state  an  account,  and  objections 
to  their  report  must  be  made  by  way  of  exceptions  to  it,  and 
neither  party  has  the  right  to  require  the  facts  to  be  passed 
upon  by  a  jury.     Klutts  v.  McKenzie,  U5  X.  C.  R.  102. 

5.  Where  a  decree  is  made  directing  an  account  between 
the  parties  litigant  to  be  taken  without  prejudice,  and  the 
account  is  taken  and  exceptions  thereto  are  filed,  it  is  too  late 
for  the  defendant  to  demand  a  hearing  of  the  cause  by  the 
Court,  upon  the  question  of  his  liability  to  account.  Latti- 
more  v.  Dixon,  65  X.  C  R.  664. 

6.  Objections  to  the  power  of  the  referee  to  pass  upon  the 
issues  involved  in  the  pleadings,  should  be  made  to  the  Court 
before  the  appointment  of  the  referee,  and  before  proceeding 
to  hear  the  cause  upon  the  report  and  the  exceptions  thereto 
filed.    Ibid. 


PEAOTIOE— XI—  XII.  387 

7.  "Where  a  party  fails  to  name  a  place  or  person,  in  the 
county  where  the  action  is  brought,  where  and  upon  whom 
notices  and  pleadings  can  be  served,  the  findings  of  such  no- 
tices and  pleadings  in  the  office  of  the  Cleric  ot  the  Superior 
Court  shall  be  sufficient.  Maxwell  v.  Maxwell,  67  X.  C.  R. 
383. 

8.  In  an  action  to  foreclose  a  mortgage,  the  Judge  may, 
if  necessary,  refer  the  matter  to  the  clerk  to  settle  the  details 
and  report  the  balance  clue,  but  if  nothing  is  to  be  done  ex- 
cept to  calculate  interest,  the  Judge  may  do  it  himself,  or  di- 
rect the  clerk  to  do  it  instanter,  and  give  judgment  accord- 
ingly.    Latham  v.  Whitehurst,  69  X.  C.  R.  33. 

See  (Reference  under  the  Code  of  Civil  Procedure.) 

XII.     SOME  MISCELLANEOUS  RULES  OF  PRACTICE. 

1.  Under  Rev.  Code,  ch.  32,  s.  3,  r.  5,  it  is  error  to  set 
down  a  cause  for  hearing  until  the  second  term  after  replica- 
tion is  filed,  whether  the  testimony  proposed  to  be  offered  by 
the  defendant  be  material  or  otherwise.  Trammell  v.  Fordr 
Phil.  Eq.  R.,  330. 

2.  After  a  nol  pros,  had  been  entered  as  to  one  of  several 
defendants,  upon  motion  by  the  respective  parties  remaining, 
material  amendments  were  allowed  to  each:  held,  that  any 
question  as  to  costs  upon  the  process  agaiust  the  defendant 
discharged,  should  have  been  settled  at  the  time  of  such, 
allowance ;  and  that  upon  such  question  being  raised  after 
final  judgment  for  the  demand  and  costs,  it  will  be  presumed 
by  the  court  to  have  been  settled.  Bi/num  v.  Daniel,  63 
X.  C.  R.  24. 

3.  Counsel  have  no  right  during  the  argument  of  a  case 
to  make  observations  upon  the  fact  that  the  other  party  to- 
the  cause  has  not  come  forward  as  a  witness  therein.  Dev- 
ries  v.  Haywood,  63  X.  C.  R.  53. 

4.  Where  a  lost  execution  was  alleged  to  be  a  link  in  the 
title  of  a  plaintiff  in  ejectment:  held,  that  such  fact  did  not 
render  an  application  under  an  independent  motion,  made 
without  notice  to  the  other  party,  a  correct  method  of  sup- 
plying the  loss ;  also,  that  what  was  required  of  the  plaintiff 
was  only,  to  notify  the  defendant  that  on  the  trial  of  the 
ejectment  the  loss  would  be  proved,  and  on  doing  so,  to  prove 
its  contents  by  parol.     Stanly  v.  Massingill,  63  X.  C.  R.  558. 

5.  A  suit  had  been  brought  to  Spring  Term  1867,  and  the 
docket  at  that  term  showed  that  an  incipitur  was  required  by 
the  defendant,  before  pleading;  upon  the  docket  was  also 


388  PEACTICE— XII— XIII. 

this  entry :  ''  Plaintiff  charges  for  keeping  bis  mother-in-law," 
no  pleas  were  entered  until  the  case  was  called  for  trial,  at 
Fall  Term  1869 :  held,  that,  as  the  court  could  not  tell 
whether  the  entry.  "  Plaintiff  charges,"  &c,  at  Spring  Term, 
1867,  was  the  incipitur  required,  or  was,  by  its  vagueness, 
the  occasion  of  calling  for  an  incipitur,  and  also,  considering 
the  subsequent  actiou  of  the  parties  respectively,  it  could  not 
be  said  that  the  defendant  had  impaired  his  right  to  plead 
at  Fall  Term  1869,  and  therefore,  that  it  was  erroneous  in 
in  the  Judge  below,  to  restrict  him  in  the  exercise  of  such 
right ;  ex.  gr.  by  refusing  to  allow  him  to  plead  the  general 
issue.     Whitesides  v.  Green,  64  X.  0.  E.  307. 

6.  Objections  to  the  competency  of  testimony  must  be 
taken  in  due  time,  if  not,  they  are  waived :  therefore,  where 
a  party  was  allowed  to  testify,  upon  examination  in  chief  to 
a  conversation  between  himself  and  the  defendant's  testator, 
and  during  the  cross-examination,  the  defendant  objected  to 
the  competency  of  such  testimony,  and  asked  that  it  might 
be  excluded  :  held,  that  although  incompetent,  the  objection 
came  too  late.     Meroney  Y.Avery,  64  X.  C.  E.  312. 

7.  In  a  case  where,  prior  to  the  act  suspending  the  0.  0. 
P.,  judgment  had  been  taken  in  the  clerk's  office  for  want  of 
answer,  &c,  and  the  defendant  appealed  to  the  Judge  :  held, 
that  the  Judge  had  power  to  strike  out  such  judgment,  and 
allow  an  answer  or  demurrer  to  be  filed.  Walston  v.  Bryan, 
64  X.  C.  E.  764. 

8.  A  negotiable  instrument,  the  execution  of  which  is  ad- 
mitted in  the  answer,  must  be  produced  on  the  trial,  or  its 
loss  accounted  for.     Morrow  v.  Alman,  65  X.  0.  E.  507. 

9.  A  statute  is  to  be  constructed  prospectively  unless  a 
contrary  iuteution  is  clearly  expressed  therein.  Therefore, 
where  an  action  was  commenced  on  the  1 8th  day  of  March, 
1870,  and  subsequently  the  Legislatuee  passed  an  act  chan- 
ging the  mode  of  procedure,  it  can  have  no  application  to 
such  cause,  and  the  action  must  be  tried  according  to  the  law 
existing  at  the  commencement  of  said  action.  Mervin  v. 
Ballard,  66  X.  0.  E.  398. 

10.  It  is  erroneous  for  a  Superior  Court  to  pronounce  any 
judgment,  if  the  facts  are  controverted,  until  the  same  have 
been  ascertained  in  some  of  the  modes  provided  for.  Leggett 
v.  Leggett,  66  X.  C.  E.  420. 

Sin.    PAETIES. 

1.    Where  a  bill  named  certain  persons,  md  prayed  that 


PBACTICE— XIII —XIV.  389 

they  might  be  made  defendants  without  expressly  praying  for 

process  against  them:  held,  to  be  a  sufficient  designation  of 
them  as  parties,  especially  as  they  all  appeared  and  joined  in 
the  demurrer.     Ferguson  v.  Hass,  Phil.  Eq.  E.  113. 

2.  Where  a  bill  was  prolix,  argumentative  and  inartificial, 
and  was  demurred  to  on  that  account :  held,  that  the  proper 
order  was,  for  its  reformation  in  these  respects  in  the  court  he- 
low,  at  the  costs  of  the  complainants.     Ihid. 

3.  When  a  demurrer  is  filed  for  want  of  a  proper  party, 
and  from  the  facts  presented  by  the  pleadings,  as  in  this  case 
the  matter  is  left  in  doubt,  the  Court  cannot  render  judgment, 
but  remand  the  cause.     Bunting  v.  Fog,  GO  X.  (J.  E.  193. 

4.  When  a  pleading  shows  that  parties  other  than  those 
of  record,  have  an  important  interest  in  the  decision  of  the 
cause,  the  omission  to  set  out  their  names  is  an  inexcusable 
error,  as  a  complete  decree  cannot  be  made  without  their  pre- 
sence before  the  Court,  and  the  Court  cannot  see  under  the 
general  phrase  "certain  parties"  who  they  are.  Whittedy. 
Nash,  GG  X.  C.  E.  590. 

XIV.     OF  THE  TRIAL  AND  ITS  INCIDENTS. 

1.  A  Judge  has  the  power  to  stop  an  Attorney  who  abu- 
ses his  privileges  in  his  comments  on  a  witness  and  his  testi- 
mony before  the  jury.     State  v.  Williams,  C5  X.  C.  E.  505. 

2.  It  is  discretionary  with  the  court  to  stop  counsel  at  the 
time,  who  are  making  improper  remarks  to  the  jury,  or  to 
wait  and  correct  the  error  iu  the  charge.  Jenkins  v.  N.  C. 
0.  D.  Co.,  G5  X.  C  E,  5G3. 

3.  Where  counsel  grossly  abuses  his  privilege  whilst  ad- 
dressing the  jury  to  the  manifest  prejudice  of  the  opposite 
party,  it  is  the  duty  of  the  court  to  stop  him  then  and  there; 
otherwise  it  is  ground  for  a  new  tiial.     Ibid. 

4.  It  is  incumbent  upon  the  party  excepting,  when  the 
error  alleged  consists  in  rejecting  evidence,  to  show  distinctly 
what  the  evidence  was,  in  order  that  its  relevancy  may  ap- 
pear, and  that  it  may  be  seen  that  he  has  been  prejudiced  by 
its  rejection.     Sweet  v.  Bryan,  6">  X.  C.  E.  019. 

5.  In  all  actions  under  the  C  C.  P.,  where  legal  rights  are 
involved,  and  issues  of  fact  are  joined  by  the  pleadings,  the 
plaintiff  is  entitled  to  a  trial  by  jury, 'and  cannot  be  deprived 
of  this  right,  execept  by  his  consent.  Andrews  v.  Pritchett, 
G6  X.  C.  E.  3S7. 

6.  If  it  appear  upon  the  trial  that  a  party  has  been  mis- 
led in  his  preparation  of  the  case,  without  his  fault,  the. 


300  PRACTICE— XIV.— XV. 

Judge,  has  power  to  order  ajurortobe  withdrawn,  and  make 
such  other  orders  as  may  be  proper.  Pegram  v.  Stolte,  67 
X.  C.  E.  144. 

7.  A  Judge  may,  in  his  discretion,  permit  a  blauk  en- 
dorsement on  a  note  to  be  filled  up  at  any  time  during  the  trial, 
and  even  after  verdict.     Ogborne  v.  Teague,  G7  X.  C.  E.  355. 

8.  On  the  trial  an  action  upon  a  note  due  an  intestate, 
liis  administeator  was  introduced  and  asked  what  his  intes- 
tate said  about  the  note  before  his  death — question  ruled  out. 
Defendant's  counsel  argued  to  the  jury,  that  if  the  intestate 
■were  alive,  he  would  be  willing  to  leave  the  decision  of  the 
case  with  him,  &c.  In  reply  the  plaintiff's  counsel  had  a 
right  to  comment  before  the  jury  upon  the  objection  of  the 
defendant  to  the  introduction  of  the  declarations  of  the  intes- 
tate.    Chambers,  AdmCr  v.  Greenwood,  (iS  X.  C  E.  274. 

9.  The  non-introduction  of  a  statement,  in  which  it  is  re- 
lied on  that  a  note,  the  subject  of  the  action,  was  brought  into 
account  and  is  satisfied,  is  a  proper  circumstance  for  comment 
before  the  jury,  on  the  trial  for  the  recovery  of  the  amount 
of  the  note.     Ibid. 

10.  Proper  time  to  ask  for  particular  instructions  is  at  or 
before  the  close  of  the  evideuce,  and  before  the  Judge  has 
given  such  instructions  to  the  jury  as  he  may  think  the  case 
requires.     Ibid. 

11.  When  issues  are  made  up  by  the  pleadings,  parties 
Lave  the  right  to  have  those  material  to  the  determination 
of  the  case  submitted  to  a  jury  ;  and  for  the  presiding  Judge 
to  withdraw  such  material  issues  and  substitute  others,  is 
error.     Albright  v.  Mitchell,  70  X.  C.  E.  445. 

See  (Practice — Some  miscellaneous  rules  of  practice.) 

XV.     SUBMITTING  QUESTIONS  OF  FACT  TO  A  JUKY. 

1.  Pending  a  motion  to  set  aside  an  execution,  and  cause 
satisfaction  of  a  judgment  upon  which  it  was  based  to  be 
entered  upon  record,  a  Judge  of  the  Superior  Court,  can,  in 
the  exercise  of  a  sound  discretion,  submit  such  issues  of  fact 
to  a  jury  arising  on  conflict  of  testimony  as  he  may  deem 
proper,  and  this  court  will  not  attempt  to  control  its  exercise. 
Moye  v.  Cogdell,  GG  X.  C  E.  403. 

2.  Under  our  present  system  courts  of  law  and  equity 
have  been  blended.     Ibid. 

3.  When  a  Judge  of  the  Superior  Court  has  power  to 
pass  upon  questions  of  fact,  in  the  admisistration  of  justice, 
and  he  becomes  perplexed  by  a  conflict  of  testimouy  he  may 


PEAOTICE— XV.  391 

-and  should  enlighten  his  conscience  by  referring  their  solu- 
tion to  the  determination  of  a  jury,  and  in  the  meantime  to 
cause  the  execution  to  be  superseded.     Ibid. 

4.  A  jury  is  the  appropriate  tribunal  to  determine  mat- 
ters of  fact  rendered  doubtful  by  contradictory  evidence. 
IUd. 

5.  A  Judge  may  refer  all  questions  of  fact,  which  he  can 
lawfully  determine,  to  the  decision  of  a  jury.     Ibid. 

6.  In  an  action  to  set  aside  a  deed  for  fraud,  a  Judge  may, 
by  sec.  225  of  0.  C.  P.,  try  such  issues  of  fact  as  are  made  by 
the  pleading.  He  may  also  submit  to  a  jury  issues  so  framed 
as  to  preseut  any  question  of  fact  on  which  he  doubts,  but  he 
is  not  bound  by  their  verdict,  and  may  proceed  to  find  the 
facts  otherwise  than  they  have  found  ;  and  he  may  also  find 
facts  not  embraced  in  the  issues  submitted  to  them.  Golds- 
borough  v.  Turner,  67  N.  C.  R.  403. 

7.  Wheu  the  pleadings  state  the  same  material  facts,  and 
no  issue  can  be  joined,  it  is  proper  for  the  court  to  withdraw 
the  case  from  the  jury,  and  determine  it  as  a  question  of  law. 
Cobb  v.  Harden,  67  N.  0.  R.  472. 

8.  Where  a  plaintiff,  in  an  action  to  recover  possession  of 
land,  alleged  that  the  defendant  held  a  bond  for  title  under  a 
former  owner  now  dead,  and  had  made  payments  in  part  for 
the  land ;  that  said  former  owner  had  devised  the  land  to  a 
daughter  who  conveyed  to  the  plaintiff;  the  defendant  an- 
swered that  by  payments  in  money  and  in  property  and  ser- 
vices, which  were  to  be  taken  as  money,  he  had  paid  in  full 
for  the  land  ;  and  plaintiff  replied  that  the  alleged  payments 
Mere  not  payments  but  items  in  an  account  which  were  bar- 
red by  the  statute  of  limitation  :  lield,  that  the  proper  issue 
was  one  for  a  jury,  viz:  whether  the  defendant  paid  his  ven- 
dor in  full  or  partially,  and  it  partially,  how  much.  JEubanks 
v.  Mitchell,  67  N.  0.  R.  34. 

9.  Pleadings  on  both  sides  being  defective,  cause  re- 
manded without  costs  to  either  party      Ibid. 

10.  Where  iu  such  a  case  a  reference  was  made,  and  the 
referee  reported  that  the  defendant  had  made  partial  pay- 
ments exceeding  his  indebtedness  for  the  land,  and  excep- 

,  tiocs  were  filed  and  sustained,  on  the  ground  that  the  items 
allowed  were  barred  by  the  statute :  held,  that  there  was  a 
misconception  of  the  issue,  or  the  issue  made  was  immate- 
rial.    Ibid. 

11.  It  is  not  the  duty  of  a  Judge,  in  passing  on  excep- 
tions, to  decide  all  questions  of  facts  without  a  jury.  On 
the  contrary,  if  the  facts  depend  upon  doubtful  and  conflict- 


392  PEACTIOE— XV— XVI. 

ing  testimony,  he  may  cause  issues  to  be  framed  and  sub- 
mitted to  a  jury  for  information.  Maxwell  v.  Maxwell.  67 
N.  C.  E.  383. 

12.  A  Judge  of  the  Superior  Court  in  passing  upon  a 
mixed  question  of  law  and  fact,  should,  as  required  by  0.  0. 
P.,  sees.  241,  242,  state  the  tacts  found,  and  the  conclusion 
of  law  separately.     Foushee  v.  Faltershall,  67  K".  0.  E.  458. 

13.  Where  a  case  has  been  pending  in  the  Supreme  Court 
since  July,  1871,  and  after  this  Court  had  ordered  issues  of 
lact  to  be  made  up  and  tried  in  the  Court  below,  it  is  too 
late  to  contend  that  such  issues  were,  by  consent  of  parties, 
finally  determined  by  his  Honor  below.  Faulkner  v.  Hunt, 
68  N.  C.  E.  475. 

XVI.    JUDGE'S  CHARGE. 

1.  Both  parties,  haviug  been  introduced,  as  witnesses  for 
the  plaintiff,  the  plaintiff  testified  to  certain  language  as 
having  been  uttered  by  the  defendant,  whilst  the  latter  (upon 
cross-examination)  said  that  he  did  not  remember  that  he 
ever  had  any  such  conversation ;  that  the  debtor  had  never 
placed  any  property  in  his  hands,  and  he  had  no  property  of 
his  in  his  hand."  Upon  this  the  Court  instructed  the  jury, 
that  it  was  their  duty  to  reconcile  contradictions  if  they  rea- 
sonably could;  that  as  the  testimony  of  the  plaintiff  was  pos- 
itive, and  that  of  the  defendant  "  that  he  did  not  remember," 
if  they  found  there  was  no  such  agreement,  it  would  be  an 
imputation  upon  the  veracity  of  the  plaintiff,  whereas  if  they 
found  that  there  was,  there  would  be  no  such  imputation  up- 
on the  veracity  of  the  defendant,  and  in  this  way  their  state- 
ments might  be  reconciled,  but  that  it  was  a  matter,  for  them  : 
held,  that  the  court  erred  therein  in  intimating  an  opinion  as 
to  a  matter  of  fact.     Hicks  v.  Crilcher,  Phil.  L.  E.  353. 

2.  It  having  appeared  upon  the  trial  that  the  note  in  ques- 
tion was  in  court,  and  apparently  not  claimed  by  the  plain- 
tiffs :  held,  to  have  been  proper  for  the  court  to  clear  away 
any  doubts  by  enquiring  of  the  counsel  for  the  plaintiffs  at  a 
subsequent  stage  of  the  trial,  what  disposition  it  was  proposed 
to  make  of  the  note.     Luts  v.  Yount,  Phil.  L.  E.  367. 

3.  In  charging  the  jury  the  Judge  inadvertently  stated 
that  an  argument,  which  was  then  suggested  by  himself,  had 
come  from  the  plaintiff's  counsel:  held  that  the  defendant  had 
no  cause  to  complain.     Ibid. 

4.  Where  a  lost  letter  was  one  of  many  that  had  passed 
between  a  principal  and  his  agent  in  reference  to  a  mat- 


PEACTICE— XYI.  393 

ter  of  business  and  its  contents  were  not  precisely  admitted  : 
held,  to  be  error  for  the  court  to  take  upon  itself  to  state  its 
effect  upon  the  relation  between  the  parties  to  the  correspond- 
ence ;  and  that  in  such  case  the  court,  with  proper  observa- 
tions on  the  law  of  agency,  revocation,  &c,  should  submit  the 
question  of  effect,  &c,  to  the  decision  of  the  jury.  Sneed  v. 
Smith,  Phil.  L.  E.  595. 

5.  If  a  jury  decide  correctly  a  question  of  law  improperly 
left  to  them  by  the  Court,  the  verdict  cures  the  error  of  the 
Court.     Glover  v.  B.  B.  Co.,  63  N.  C.  E.  510. 

6.  A  Judge  is  not  bound  to  follow  the  very  words  used  by 
counsel  in  a  prayer  for  instructions,  provided  that  he  is  sub- 
stantially correct  in  the  language  which  he  does  use.  State 
v.  Brantley  &  WatUns,  63  N".  C.  E.  518. 

7.  Where  the  defendant  in  an  indictment  requested  the 
Judge  to  instruct  the  jury:  "  That  it  is  the  peculiar  province 
of  the  jury  to  judge  of  the  credibility  of  the  witness,  and  they 
may  take  into  consideration  the  manner  of  the  witness  upon 
the  stand,  and  also  the  unreasonableness  of  his  statements ; 
that  if  the  jury  are  satisfied  that  the  witness  made  a  false 
and  corrupt  statement  in  part,  they  ought  to  discard  his  tes- 
timony altogether;"  and  the  Judge  gave  the  first  introduc- 
tion, but  refused  to  give  the  second  adding  :  "  I  will,  for  the 
benefit  of  the  defendant's  attorney,  go  further,  and  say  to  the 
jury,  that  they  have  no  more  right  to  discard  entirely  the  tes- 
timony of  the  witness,  thau  they  have  to  commit  perjury :" 
held,  that  whatever  might  be  said  of  the  propriety  of  the  lat- 
ter remark, — taking  the  instructions  altogether,  there  was  no 
error     State  v.  Spencer,  64  N.  C  E.  316. 

8.  In  a  case  where  there  are  a  number  of  witnesses  on 
each  side  who  contradict  each  other,  it  would  be  improper 
(generally,)  tor  the  Court  to  select  one  of  them,  and  instruct 
the  jury  that  if  they  believed  Mm,  they  must  find  their  ver- 
dict in  a  particular  way,  because,  among  other  reasons,  that 
would  be  to  make  the  case  turn  upon  his  veracity,  whereas 
he  might  be  truthful,  and  yet  his  testimony  be  liable  to  mod- 
ification, or  explanation  by  other  parts  of  the  testimony. 
Anderson  v.  C.  F.  Steamboat  Co.,  64  N.  C.  E.  399. 

9.  A  charge  which  substantially  conforms  to  the  instruc- 
tions asked  by  a  party,  is  sufficient;  the  Judge  need  not 
adopt  the  words  of  such  instructions.  State  v.  Scott,  64  N. 
C  E  586. 

10.  A  Judge  is  not  required  to  charge  the  jury  upon  a 
hypothetical  case,  and  if  the  evidence  does  not  justify  the 
instructions  asked  for,  it  is  improper  to  give  them.  State  v. 
Haryett,  65  K".  C.  E.  669. 


394  PRACTICE— XVI. 

11.  It  is  sufficient  if  a  Judge  gives  substantially  the  in- 
structions asked  for.     IMcl. 

12.  When,  on  the  trial  of  a  prisoner,  a  prayer  on  his  be- 
half for  instructions  assumes  certain  facts  to  be  in  proof,  and 
in  the  opinion  of  the  Judge  there  is  no  evidence  tending  to 
prove  them,  he  ought  to  say  so,  and  thus  disembarrass  the 
jury  of  the  consideration  both  of  the  assumed  facts  and  of 
the  questions  of  law  predicated  on  their  assumption.  State 
v.  Dunlap,  65  N".  C  R.  288. 

13.  When  instructions  are  asked  for  upon  an  assumed 
state  of  facts,  which  there  is  evidence  tending  to  prove,  and 
thus  questions  of  law  are  raised  which  are  pertinent  to  the 
ease,  it  is  the  duty  of  the  J  udge  to  answer  the  questions  so 
presented,  and  to  instruct  the  jury  distinctly  what  the  law  is, 
if  they  shall  find  the  assumed  state  of  facts  to  be  true,  and  so 
in  respect  to  every  state  of  facts  which  may  be  reasonably 
assumed  upon  the  evidence.     IMcl. 

14.  If  the  charge  of  a  Judge  on  a  trial  for  murder  is 
correct  as  a  general  essay  on  homicide,  and  his  propositions 
taken  generally  are  supported  by  the  authorities  ;  still  it  is 
not  a  full  compliance  with  the  statute,  Rev.  Code,  ch.  31, 
sec.  190,  which  requires  the  Judge  to  declare  and  explain  to 
the  jury  the  law  arising  on  the  evidence.     Ibid. 

16.  Where  a  Judge  in  charging  a  jury  used  this  language, 
to-wit :  "  If  her  character,  (referring  to  a  witness,)  is  of  ordi- 
nary respectability,  you  will  take  her  testimony  to  be  true, 
unless  she  is  fully  and  thoroughly  contradicted,"  it  is  errone- 
ous. It  is  the  province  of  a  jury  to  pass  upon  the  credibility 
of  a  witness,  and  the  weight  of  the  testimony,  and  although 
the  witness  may  be  never  so  reputable,  yet  where  there  is  a 
conflict  of  testimony,  the  court  cannot  tell  a  jury  that  they 
must  take  the  testimony  to  be  true.  Such  a  charge  is  in  vio- 
lation of  the  act  of  1796.     State  v.  Parker,  60  K  C  R.  624. 

17.  Nor  is  this  error  corrected,  where  the  Judge  in  a  sub- 
sequent part  of  the  charge  uses  language,  in  referring  to  the 
same  witness,  susceptible  of  two  constructions.     Ibid. 

18.  Where  the  complaint  alleges  no  fraudulent  represen- 
tation in  the  sale  of  personalty,  it  is  proper  to  charge  the  jury 
that  the  plaintiff  is  not  entitled  to  recover  for  a  fraudulent 
representation,  a3  there  is  no  such  issue  raised  by  the  plead- 
ings.    Wilson  v.  Holley,  m  K  C.  R.  407. 

19.  It  is  not  error  to  refuse  auy  instructions  asked  upon 
iin  hypothecation  of  facts.     Ibid. 

20.  Where  a  Judge,  in  response  to  a  prayer  for  special 
instructions,  complies  strictly  therewith,  it  cannot  be  error. 


PRACTICE— XVI.  395 

More  especially,  when  bis  charge  is  quite  as  favorable  as  the 
testimony  warrant*.  McLennon  v.  Chisholm,  GO  X.  C.  R. 
100. 

21.  Where,  on  the  trial  of  an  action  for  breach  of  contract, 
it  is  alleged  that  the  original  contract  touching  which  there 
was  no  dispute,  had  been  varied,  and  the  contents  of  certain 
letters  are  relied  on,  and  the  same  being  shown  to  be  lost, 
there  is  parol  proof  of  their  contents,  and  it  is  admitted  that 
the  letters  contained  a  modification,  and  there  was  no  con- 
troversy as  to  the  particular  language  used  in  them  ;  held, 
that  this  court  could  not  pronounce  a  charge  erroneous  which 
submits  to  the  jury  to  find  whether  or  not  the  contract  had 
been  modified  as  contended  for,  especially  when  the  point 
made  in  this  court,  to-wit :  that  his  Honor  should  have  in- 
structed the  jury  as  to  the  question  of  law,  whether  the  evi- 
dence proved  a  modification,  does  not  appear  to  have  been 
suggested  in  the  court  below,  but  on  the  contrary,  on  the 
trial  it  seemed  to  be  conceded,  that  if  the  contents  of  the  let- 
ters  were,  as  testified  to,  that  there  had  been  a  modification 
and  the  contest  was  as  to  the  fact  of  the  existence  of  the 
letters.     Calloway  v.  Bnjce,  06  X.  C.  R.  514. 

22.  Although  the  general  rule  is,  that  where  a  contract 
lias  existed  in  writing,  it  is  the  duty  of  the  Judge,  on  proof 
of  its  contents,  (if  lost,)  to  instruct  the  jury  as  to  the  legal 
effect  of  the  words,  yet  the  rigorous  application  of  this  rule  is 
often  impracticable,  it  being  impossible  in  many  cases,  to  sep- 
arate the  language  used  from  its  meaning,  so  as  to  eliminate 
one  from  the  other.     Ibid. 

23.  Xor  is  it,  in  general,  important  when  the  words  used 
are  untechnical,  as  iu  such  cases  a  jury  is  as  competent  to 
pass  on  the  effect  as  a  Judge.     Ibid. 

24.  There  is  uo  formula  by  which  Judges  are  bound,  in 
charging  upon  the  degree  of  mental  capacity,  sufficient  to 
make  a  will.     Lawrence  v.  Steel,  GO  X.  C.  R.  584. 

25.  A  charge  that  a  testatrix:  must  have  had  mind  and 
intelligence  sufficient;  at  the  time  she  executed  the  will,  to 
enable  her  to  have  a  reasonable  judgment  of  the  kind  and 
value  of  the  property  she  proposed  to  will,  and  to  whom  she 
was  willing  it,  is  not  erroneous,  especially  iu  a  case  where 
there  was  evidence  of  undue  influence  as  well  as  incapacity, 
nor  was  it  rendered  erroneous,  though  given  in  connection 
with  a  refusal  to  give  a  prayer  in  vpsisimis  verbis,  a  definition 
of  such  capacity  which  had  been  approved  by  this  court. 
Ibid. 

20.     It  seldom  does  justice  to  the  Judge  or  the  case  on 


396  PEACTIOE— XVI. 

trial,  to  select  isolated  expressions  which  have  been  held  to* 
be  proper  in  other  cases,  and  insist  upon  their  being  used  by 
the  Judge  in  his  charge,  because  it  is  seldom  that  two  cases 
are  exactly  alike,  and  if  they  are,  and  a  charge  in  the  first 
case  has  been  approved  by  the  appellate  court,  non  constat, 
that  it  would  not  have  been  approved  if  expressed  in  other 
language.     Ibid. 

27.  A  charge  which  misses  the  point  of  the  case  and  fails 
to  enlighten  the  jury  on  the  points  in  controversy  cannot  be 
sustained.     Burton  v.  Wilkes,  66  N".  0.  E.  604.  " 

28.  A  Judge  has  not  a  right  to  hand  to  the  jury  a  slip 
of  paper  containing  an  abbreviated  estimate  of  plaintiff's 
claim  for  damages  against  the  wish  of  the  other  party.     1  bid. 

29.  Where  there  is  no  evidence  to  sustain  the  declaration 
of  a  plaintiff,  it  is  the  duty  of  the  court  to  so  instruct  the 
jury.     McOombs  v.  N.  C.  R.  K,  67  N.  0.  R.  193. 

30.  A  Judge,  in  commenting  upon  the  testimony,  may, 
by  his  manner  and  emphasis,  intimate  an  opinion  upon  the 
facts,  and  violate  the  act  of  1796.  The  record,  however, 
must  show  such  peculiarity  of  manner  and  emphasis,  that  the 
Court  may  see  whether  or  not  the  act  has  been  violated. 
Reiger  v.  Davis,  67  N.  0.  R.  135. 

31.  It  has  been  accepted  as  the  proper  construction  and 
meaning  of  the  Act  of  1796,  Rev  Code,  chap.  31,  sec.  30, 
though  it  goes  beyond  the  words  :  that  a  Judge  in  charging 
a  jury  shall  state  the  evidence  fairly  and  impartially,  and  that 
he  shall  express  no  opinion  on  the  weight  of  evidence.  State 
v.  W.  H.  Jones,  67  K  0.  R.  285 

32.  Where  there  is  an  exception  to  the  charge  of  a  Judge 
for  violating  the  act,  it  will  not  be  sufficient  to  show,  that 
what  he  did  or  said  might  have  had  an  unfair  influence,  or 
that  his  words  critically  examined  and  detached  from  the 
context  and  the  incidents  of  the  trial,  were  capable  of  a  con- 
struction, from  which  his  opinion  on  the  weight  of  testimony 
might  be  inferred  ;  but  it  must  appear,  with  ordinary  cer- 
tainty, that  his  manner  of  arraying  and  presenting  the  evi- 
dence was  unfair,  and  likely  to  be  prejudicial,  or  that  his 
language,  when  fairly  interpreted,  was  likely  to  convey  to  the 
jury  his  opiuion  on  the  weight  of  the  testimony.     1  bid. 

33.  Where  two  witnesses  were  examined  as  to  the  condi- 
tion and  capacity  of  a  supposed  testator,  neither  of  whom 
spoke  positively  as  to  the  facts,  and  the  Judge  in  charging 
the  jury  said  :  "When  two  witnesses  of  equal  respectability 
and  opportunities  testify  as  to  a  fact,  the  one  positively  and 
the  other  uncertainly,  the  law  gives  the  greater  weight  to 


PRACTICE— XVI.  397 

the  positive  testimony  :"  held,  that  although  this  charge  was 
not  strictly  applicable  to  the  case,  yet,  as  it  was  a  repetition 
of  a  truism,  is  was  not  calculated  to  mislead  a  juror.  Toive 
v.  Toive,  67  N.  0.  R.  298. 

34.  If  a  Judge  should  intimate  an  opinion  upon  the  facts, 
in  favor  of  one  of  the  parties  to  a  suit,  that  party  has  no 
reason  to  complain.     1  bid. 

35.  Where  a  Judge  in  charging  a  jury  expressed  his 
strong  indignation  that  persons,  in  hearing  of  the  alleged  vio- 
lence, did  not  rush  to  the  rescue  of  the  person  upon  whom  it 
was  committed,  also  expressed  his  eagerness  and  desire  to 
punish  them  for  their  cowardice ;  it  was  held,  that  such  ex- 
pressions were  a  clear  intimation  of  an  opinion  upon  the  facts, 
and  a  violation  of  the  statute.  State  v.  Brown,  67  N.  0.  R.  435. 

36.  It  is  error  in  a  Judge  to  leave  a  case  to  the  jury  upon 
a  hypothetical  state  of  facts,  unwarranted  by  the  evidence. 
Matthews  v.  Smith,  67  X.  C  R.  374. 

37.  The  refusal  of  a  Judge,  on  a  trial  of  murder,  to  instruct 
the  jury  that  they  ought  not  to  convict  on  a  simple  confes- 
sion, for  the  reason  that  if  they  believed  the  confession  to  be 
true  it  was  their  duty  to  convict,  is  not  error :  especially  so 
when  there  is  much  corroborating  testimony,  and  the  proposi- 
tion was  a  mere  abstraction.  State  v  Graham,  68  N,  0.  R. 
247. 

38.  If  the  instructions  asked  on  a  trial  in  the  Superior 
Court,  aud  given  in  the  precise  words  asked  for  by  the  Court, 
are  so  vague  and  obscure  as  to  admit  of  two  different  con- 
structions, one  of  which  may  possibly  mislead  the  jury,  it  is 
error,  and  a  good  cause  for  a  venire  de  novo.  Adams  v.  Beeves, 
68  N.  C.  R.  134. 

39.  "When  a  plaintiff  requests  a  Judge,  on  a  trial  in  the 
court  below,  to  instruct  the  jury  that  the  defendent  must 
support  his  defence,  by  a  preponderance  of  testimony;  and 
instead  of  so  doing  his  Honor  tells  the  jury  that  they  must 
judge  of  the  weight  of  the  evidence,  and  if  they  believed 
the  testimony  of  the  defendant,  they  should  find  for  him : 
held,  to  be  no  error,     llowerton  v.  Lattimer,  68  N.  C.  R.  370. 

40.  The  Judge  who  tries  a  cause  has  no  right  to  intimate 
in  any  manner  his  opinion  as  to  the  weight  of  the  evidence, 
nor  to  express  an  opinion  on  the  facts.  Powell  v.  W.  &  W. 
Railroa  I  Co.,  68  N.  C.  R.  395. 

41.  Where  there  is  any  evidence  to  the  contrary,  it  is  er- 
roneous in  the  Judge  to  say,  "  We  are  not  informed"  of  a 
fact  upon  which  it  is  for  the  jury  to  pass.     Ibid. 

42.  Where  there  is  conflicting  testimony  and  divers  wit- 


398  PE  ACTICE— X  VI. 

nesses,  it  is  seldom  the  case  that  the  Judge  cau  pick  out  any 
single  witness,  and  say,  if  you  believe  him  you  must  find  for 
the  plaintiff  or  defendant.     Brem  v.  Allison,  68  K  C.  E.  412. 

43.  There  may  be  cases  where  it  would  be  proper,  but 
generally  it  is  safer  to  put  the  case  to  the  jury  upon  all  the 
evidence,  with  proper  explanations.     Ibid. 

44.  Where  there  was  evidence  tending  to  show  a  state  of 
facts  which  wTould  entitle  the  plaintiff:  to  recover,  and  also 
evidence  tending  to  show  a  state  of  facts  which  would  entitle 
the  defendant  to  a  verdict  and  judgment,  and  his  Honor 
stated  both  questious  and  left  it  to  the  jury  as  a  question  of 
fact :  held,  there  was  no  error,  Long  v.  Pool,  08  X.  0.  E. 
479. 

45.  It  is  the  duty  of  the  appellant  in  this  court  to  show 
error;  otherwise  the  judgment  below  must  be  affirmed. 
When  there  isconfloting  testimon}',  the  Judge  cannot  be  re- 
quired to  charge  the  jury  that,  if  they  believed  a  certain  wit- 
ness, they  must  find  for  the  plaintiff  or  defendant,  as  the  case 
may  be.     Hardin  v.  Murray,  68  N.  0.  E.  34. 

46.  A  charge  of  the  Judge  in  the  Superior  Court,  which 
is  in  part  erroneous,  but  which  calls  the  attention  of  the  jury 
as  fairly  as  could  be  expected  under  the  circumstances  to  the 
material  question  on  which  they  were  to  pass,  is  no  ground, 
for  a  new  trial.     Lewis  v.  Sloan,  68  N.  0.  E.  557. 

47.  A  prisoner  has  no  right  to  an  instruction  from  the 
court  that  if  the  jury  do  not  believe  the  testimony  of  the  two 
named  witnesses  he  is  entitled  to  an  acquittal,  when  the  case 
stated  shows  that  there  were  other  witnesses  who  gave  ma- 
terial testimony  tending  to  prove  his  guilt.  State  v.  Baker, 
69  K  0.  E.  147. 

48.  The  charge  given  at  the  request  of  the  prisoner's 
counsel  on  the  trial  below,  "  that  the  case  of  the  State  v. 
Ingold,  relied  upon  for  the  defence,  was  law  in  North  Carolina, 
out  it  was  on  the  extreme  verge  of  the  new  law,"  is  no  ground 
for  a  new  trial.     State  v.  Harrison,  69  N".  0.  E.  264. 

49.  In  a  suit  on  a  note,  the  payment  of  which  is  relied  on 
as  a  defence,  one  of  the  defendants  testified  that  at  the  time 
the  note  was  made,  it  was  agreed  that  it  was  to  be  paid  in 
certain  cotton  goods,  and  that  the  defendants  delivered  the 
goods  to  their  agent  to  be  delivered  to  a  firm  of  which  the 
payee  was  a  member,  according  to  such  agreement;  and  the 
agent  testified  that  he  sold  and  delivered  the  goods  to  the 
firm  on  the  usual  time  of  thirty  days,  nothing  being  said 
about  the  note  :  It  was  held,  that  this  was  some  evidence  of 
payment,  which  ought  to  have  been  submitted  to  the  jury, 


PRACTICE— XVI.  399 

and  that  his  Honor  below  erred  in  charging  that  there  was 
no  evidence  of  payment,  (kirson  v.  Lineberger,  70  N.  C.  R. 
173. 

50.  Tne  rule  that  wbeu  two  witnesses  of  equal  credibility 
swears  affirmatively  and  negatively  as  to  a  certain  issue, 
credit  is  to  be  given  to  the  affirmative  statement  in  prefer- 
ence to  tbe  negative,  is  not  a  rule  of  law  to  be  laid  down  by 
the  Court,  and  it  was  no  error  in  tbe  Judge  to  refuse  so  to 
charge.     Glenn  v.  Fanner's  Bank  of  N.  C,  57  X.  0.  R.  191. 

51.  To  an  indictment  for  injuring  a  public  school  house, 
tbe  defendants,  for  a  defence,  setup  a  claim  in  a  third  person 
to  the  house  alleged  to  be  injured,  and  justified  under  the 
permission  of  such  claimant,  to  commit  the  acts  complained 
of:  held,  that  the  charge  of  the  Judge  below  "  if  the  jury  bi- 
lieved  the  defendants  honestly  were  of  the  belief  that  the 
house  was  the  property  of"  such  claimant,  "and  he  bad  a 
right  to  give  it  to  them,  they  were  not  guilty ;  but  if  the  de- 
fendants did  the  acts  complained  of,  willing  to  ruu  the  risk  of 
a  suit,  or  careless  whether  they  had  a  right  or  not,  that  would 
not  protect  them,  they  would  be  guilty ;  or,  if  they  did  the 
acts  solely  relying  upon  the  promise  of  such  claimant  to  pro- 
tect them,  they  would  be-  guilty,"  was  as  favorable  as  the  de- 
fendants could  ask,  and  was  no  good  ground  for  a  new  trial. 
State  v.  Boseman,  70  X.  C.  R.  235. 

52.  A  plaintiff  being  examined  in  his  own  behalf,  and 
swearing  that  the  defendant  promised  to  pay  a  certain  debt— - 
the  defendant  swearing  that  he  made  no  such  promise,  both 
witnesses  being  of  equal  credibility,  is  not  entitled  to  have 
the  jury  charged  by  the  Conrt,  that  as  a  rule  of  evidence,  the. 
positive  testimony  was  entitled  to  more  weight  than  the  neg- 
ative testimony.  Such  rule  is  subject  to  so  many  exceptions 
as  not  to  be  of  much  practical  use  ;  and  if  carelessly  adminis- 
tered, may  work  much  mischief.  Smith  v.  Mcllwaine,  70 
X.  C.  R.  287. 

53.  In  our  practice,  the  Judge  below  is  not  required  to 
recapitulate  the  testimony  given  in  on  a  trial  before  him  a 
secowt  time,  although  one  of  the  parties  may  request  it  to  be 
done.     Aston  v.  Craigmiles,  70  N.  C.  R.  31G. 

54.  A  sues  B  on  a  note,  which  he  swears  he  obtained 
from  C  under  the  following  circumstances  :  C  hands  a  note 
to  A,  telling  him  to  collect  it  if  possible,  and  from  the  pro- 
ceeds pay  himself  $800,  being  the  amount  of  a  note  held  by 
A  against  0,  and  pay  over  the  balance  to  him,  C  :  held,  that 
the  charge  of  bis  Honor  below,  that  if  they  believe  the  above 
statement  of  A,  the  plaintiff,  he  had  such  an  interest  in  the 


400  PEACTICE— XVI.— XVII—  XVIII. 

note  as  entitled  him  to  recover,  was  right,  and  that  the  de- 
fendant was  not  entitled  to  a  new  trial  for  misdirection. 
Willey  v.  GatUng,  70  K  0.  E.  410. 

55.  Held  further,  that  the  charge  of  his  Honor,  on  the 
issue  as  to  whether  the  note  had  beed  paid,  that  if  they  be- 
lieve the  defendant,  they  should  find  the  note  paid ;  but  if 
they  blieved  the  plaintiff,  they  should  find  the  note  had  not 
been  paid,  was  unsatisfactory  and  improper,  on  account  of 
which,  the  defendant  is  entitled  to  a  new  trial.     Ibid. 

56.  It  is  prejudicial  to  the  rights  of  the  plaintiffs,  for  the 
presiding  Judge,  on  the  trial  below,  to  charge  the  jury  that 
"  the  plaintiffs  are  not  entitled  to  recover  in  any  event,  and 
if  the  issues  were  found  in  their  favor,  he  would  set  aside  the 
verdict,"  and  afterwards  to  submit  the  issues  to  be  passed 
upon  by  the  jury  to  "say  how  the  matter  was."  Dula  v. 
Young,  70  N.  0.  E.  450. 

57.  When  on  the  joint  trial  of  two  prisoners  for  murder, 
the  presiding  Judge  directs  the  acquittal  of  one,  remarking 
at  the  time,  "I  shall  direct  an  acquittal  as  to  him,  although 
I  think  it  not  improbable  that  he  was  there,"  the  other  pris- 
oner not  being  in  any  manner  prejudiced  by  such  remark,  has 
no  right  to  complain  and  is  not  entitled  to  a  new  trial.  State 
v.  Martin,  70  N.  CE.  628. 

XVII.    MOTION  IN  ARREST  OF  JUDGMENT. 

A  motion  in  arrest  of  judgment,  rests  on  error  upon  the 
face  of  the  record;  and  any  statement  of  the  case  by  counsel 
tends  to  confuse  instead  of  aid  the  court,  who  are  obliged  to 
examine  the  whole  record,  and  pronounce  judgment  accord- 
ing to  the  very  right  and  merits  apparent  thereon.  State  v. 
Bobbin,  70  N.  0.  E.  81. 

XVIII,    ON  APPEALS. 

1.  Where  the  transcript  in  an  equity  cause  contained 
only  the  following  entries,  "Injunction  executed,  Answer 
filed,  Continued,  Defendant  appeals  to  Supreme  Court,"  the 
court,  upom  motion,  dismissed  the  appeal.  Mitchell  v.  Moore, 
Phil.  Eq.  E.  281. 

2.  The  Judge  in  the  court  below  is  not  authorised  to  send 
up  a  statement  in  equity  cases.     Ibid. 

3.  The  Supreme  Court  cannot  determine  between  con- 
flicting records  of  a  Superior  Court,  nor  will  it  pass  on  an 
opinion  of  a  Judge,  which  proceeds  upon  a  state  of  facts  dif- 


PRACTICE— XYIIL— XIX.  401 

fereut  from  tbat  agreed  to  by  the  parties,  and  different  from 
that  certified  as  of  record  to  this  court.  Williams  v.  Council, 
05  X.  0.  R.  10. 

4.  It  is  the  privilege  of  an  appellant  to  make  up  his  case, 
and  it  is  his  duty  to  do  it,  so  as  intelligibly  to  exhibit  the 
error  in  the  judgment,  of  which  he  complains;  and  the 
rules  of  practice  give  him  all  the  necessary  power  to  do  so. 
Ordinarily,  it  he  tail  to  do  so,  the  only  course  open  to  the 
Supreme  Court  is  to  confirm  the  judgment  below,  not  because 
it  is  thought  to  be  right,  but  because  it  cannot  be  seen  to  be 
wrong.     iMd. 

XIX.     IN  THE  SUPKEME  COUKT. 

1.  "What  are  the  facts  which  accompany  the  making  of 
an  entry,  is  a  matter  to  be  extracted  from  the  evidence 
only  by  the  Judge  of  the  court  below,  and  his  finding  there- 
upon cannot  be  reviewed  by  the  Supreme  Court.  Davis  v. 
/Shaver,  Phil.  L.  II.  18. 

2.  Where  error  does  not  appear  upon  the  record  trans- 
mitted to  the  Supreme  Court,  the  judgment  below  must  be 
affirmed.     Ibid. 

3.  When  a  final  judgment  is  rendered  in  the  Supreme 
Court  upon  an  appeal  from  a  final  judgment  in  the  Superior 
Court,  the  latter  court  has  power  to  issue  no  other  process  in 
the  case  but  an  execution  for  its  own  costs.  Grissett  v. 
Smith,  Phil.  L.  R.  297. 

4.  Where  the  case  transmitted  to  this  Court  shows  that 
one  party,  in  order  to  establish  his  title  to  land,  tendered 
evidence  of  &  parol  lease  thereof,  and  that  it  was  rejected  by 
the  presiding  .Judge:  held,  that  it  will  not  be  presumed,  in 
the  absence  of  any  reason  assigued,  for  the  purpose  of  sup- 
porting the  ruling  below,  that  the  lease  was  one  which  the 
Statute  of  Frauds  requires  to  be  in  writing.  Brown  v.  Wash- 
ington, C3  X.  C.  R.  514. 

5.  In  order  to  make  out  error  in  the  direction  of  the 
Judge  below,  it  is  not  necessary  to  show  that  the  evidence 
excluded  would  have  made  a  good  case  for  him  who  offers  it 
— but,  that  by  its  exclusion  he  was  prevented  from  develop- 
ing his  case.     Ibid. 

<i.     In  old  equity  cases  depending  at  the  adoption  of  the 

Constitution,  and  brought  here  by  appeal,  if  the  facts  are 

not  found  and  set  out,  but  the  evidence  fully  satisfies  the 

Court  on  which  side  the  conscience   and  justice  ol  the  case 

20 


402  PEACTICE— XIX. 

lies,  it  will  proceed  to  bear  and  determine  the  same.     Turpin 
v.  Herren,  06  X.  C.  E  519. 

7.  In  such  cases,  if  this  Court  is  satisfied  that  a  note  in 
possession  of  the  wife  of  one,  as  a  mere  custodian,  was  obtain- 
ed from  her  through  the  covin  and  cajolement  of  the  maker* 
under  pretence  of  a  settlement,  it  will  not  decree  a  re-execu- 
tion (the  note  being  overdue)  but  an  account  of  what  is  due 
thereon,  and  render  a  decree  for  such  amount  upon  the  prin- 
ciple of  surcharging  and  falsifying.     Ibid. 

8.  The  Supreme  Court  cannot  reverse  the  finding  of  a 
Judge  below,  upon  the  facts,  yet  they  have  a  right  to  reverse 
his  ruling  upon  the  legal  effect  and  operation  of  a  record. 
Gills  v.  Fuller,  66  X.  C.  E.  111. 

9.  After  a  judgment,  the  statutes  of  amendment  cure  de- 
fects arising  from  "mistake  in  the  name  of  any  party  or  per- 
son, or  for  any  informality  in  entering  judgment,  or  in  mak- 
ing up  a  record."  Eev.  Code,  ch.  3,  and  *'  no  variance  be- 
tween allegations  and  proof  shall  be  material,  uuless  it  has 
misled."     C.  C.  P.,  sec.  128.     Ibid. 

10.  A  judgment  appealed  from  must  be  affirmed  in  this 
Court,  no  error  being  assigned  on  the  record,  in  cases  where 
the  statement  as  prepared  by  the  appellant  has  been  returned 
with  objections,  and  the  appellant  bad  failed  to  apply  to  the 
Judge  below,  to  give  the  parties  a  day  to  settle  the  case  is. 
prescribed  by  sec.  301,  C.  C.  P.  Lentile  v.  Hart,  GO  X.  C.  E. 
421. 

11.  In  such  case,  upon  proper  affidavit,  an  order  will  be 
made  to  the  Judge  to  certify  a  statement,  but  if  the  Judge 
returns  to  such  order  that  no  application  to  settle  the  case 
had  been  made,  the  appellant  is  without  remedy.     Hid. 

12.  Although  issues,  in  old  equity  suits  pending  in  this 
Court,  have  been  settled  and  ordered  here,  if  after  a  verdict 
on  them  this  Court  on  a  careful  examination  of  the  whole 
case  discovers  that  the  full  merits  of  the  controversy  cannot 
be  determined  in  the  issues  so  found,  it  will  order  any  other- 
issues  it  deems  necessary  to  a  complete  determination.    1  lid. 

13.  Whether  a  partner  on  a  deficiency  of  partnership 
assets,  to  pay  partnership  debts,  is  entitled  to  a  personal 
property  of  $500  out  of  such  assets  in  preference  to  the  said 
debts,  and  whether  if  such  partner  has  individual  property 
sufficient  to  cover  such  exemption,  he  shall  be  compelled  to* 
resort  to  that,  are  questions  of  great  importance  and  de- 
serving serious  consideration,  but  as  the  facts  out  of  which 
they  arise  are  only  set  forth  inferentially,  this  Court  will  not 
proceed  to  consider  them,  but  remand  the  cause  to  the  end 


PRACTICE— XIX—  PEOCESS.  403 

that  the  facts  may  be  ascertained  and  the  rights  of  the  par- 
ties declared.     Burns  v.  Harris,  66  X.  C.  E,  509. 

14.  In  equity  cases  pending  at  the  adoption  of  the  C.  C. 
P.,  this  Court  can  either  try  the  facts  or  .direct  issues  to  be 
sent  down,  but  usually  adopts  the  latter  course  as  in  this 
case.     Burbank  v.  Wiley,  OG  X.  C.  E.  58. 

15.  This  Court  has  no  power  to  order  a  certiorari  with- 
out requiring  bond  and  security  thereon.  Weber  v.  Taylor, 
66  X.  C.  E.  412. 

16.  As  a  general  rule  the  Supreme  Court  will  not  decide  a 
case  where  nothing  but  the  question  ot  costs  is  involved  ;  but 
if  some  important  substantial  right  be  involved,  an  exception 
will  be  made  and  an  opinion  given.  Martin  v.  Sloan,  69  X. 
C.  E,  128. 

17.  The  relief  sought  in  the  complaint  of  a  plaintiff  must 
be  sought  in  the  court  below,  aud  must  not  be  sprung  in  the 
Appellate  Court  for  the  first  time.  Kennedy  v.  Johnson,  69 
X.  C.  E.  249. 

18.  A  point  which  the  bill  of  exceptions  or  case  stated 
shows  was  not  taken  in  the  court  ^elow,  cannot  be  taken  in 
this  court.     State  v.  Jones,  69  X.  C.  E.  16. 

19.  AVhere  a  petition  to  sell  land  was  filed  in  the  court  of 
Equity  prior  to  the  adoption  of  the  Constitution  in  1868,  and 
orders  were  made  therein  before  that  time,  and  after  that 
year  a  motion  was  made  against  the  clerk  and  master  in  the 
same  cause,  the  new  mode  of  procedure  will  apply  to  it,  and 
upon  an  appeal,  the  Supreme  Court  will  not  take  jurisdiction 
to  rehear  any  issues  of  fact  decided  by  the  Judge  in  the  court 
below,  but  if  it  appears  that  such  issues  were  decided  by  the 
Judge  without  objection  from  the  parties,  and  that  his  decis- 
ion was  clearly  right,  the  Supreme  Court  will  proceed  to  act 
upon  it,  and  confirm  his  judgment.  Rountree  v.  Burnett,  et 
al,  69  X.  C.  E.  76. 

See  (Practice — Submitting  questions  of  fact  to  the  jury, 
10.) 


PROCESS. 

1.  An  attachment  issued  by  the  clerk  of  the  court  for  a 
sum  within  the  jurisdiction  of  the  Court,  and  made  returna- 
ble to  the  proper  term  of  the  Court,  will  not  be  dismissed  for 
want  of  form,  because  directed  "  to  any  Constable  or  other 
lawful  officer  to  execute  and  return  within  thirty  days,  (Sun- 


404  PROCESS. 

days  excepted,) "  it  appearing  that  it  was  executed  by  the 
sheriff.     Askew  v.  Stevenson,  Phil.  L.  R.  288. 

2.  Writs  signed  in  blank  by  Clerks,  and  handed  to  Attor- 
neys, for  their  use,  it  subsequently  filled  up  by  the  latter  are 
regular  and  sufficient  writs.  At  all  events,  such  writs  when 
returned  and  received  by  the  Clerks  are  regular  as  against 
them.  Prosecution  bonds  taken  by  the  Attorneys  in  such 
cases  are  as  if  taken  by  the  Clerks,  and  will  prevent  the  in- 
curring of  the  penalty  for  not  taking  such  bonds,  even  al- 
though not  returned  at  the  first  Court  with  the  writ.  Croom 
v.  Morrisey,  63  N.  C.  R.  591. 

3.  Under  the  act  of  March  16th,  1869,  suspending  the  0. 
C.  P.,  the  summons  in  a  civil  action  is  to  be  returned  to  the 
Term.     Jones  v.  McClair,  64  tf.  C.  R.  125. 

4.  Therefore,  an  action  in  which  the  summons  was  return- 
able before  the  Clerk,  upon  demurrer  by  the  defendant,  will 
be  dismissed;  and  an  incidental  warrant  of  attachment  (issued 
because  defendant  was  removing  his  goods,  &c.,)  although 
properly  returnable,  will  follow  the  fate  of  the  action.     Ibid. 

5.  Writs  of  summons  in  civil  actions  must  (by  the  act  of 
1868-'9,  ch.  76,)  be  issued  by  the  Clerk,  and  made  returnable 
in  term  time.     Mc Arthur  v.  McJEJachin,  64  N.  C.  R.  72. 

6.  A  prosecution  bond  executed  where  uo  summons  is  is- 
sued, is  inoperative,  and  therefore  if  an  injunction  bond  have 
been  executed  in  such  case,  judgment  for  the  costs  of  the  de- 
fendant may  well  be  given  against  the  parties  thereto.  Ibid. 

7.  Where  process  in  the  body  of  it  purports  to  be  original, 
an  endorsement  of  "alias  "  or  "  pluries  "  by  the  Clerk,  will  not 
change  its  character.     Simpson  v.  Simpson,  64  N".  C.  R.  427. 

8.  A  court  has  no  power  to  amend  process  returned  at  a 
former  term,  without  giving  notice  to  persons  whose  rights 
have  previously  accrued.     Ibid. 

9.  In  all  actions  "whose  object  is  to  bind  real  estate  be- 
longing to  a  wife,  service  of  the  summons  must  be  inadej>er- 
sonalhj  upon  her,  as  well  as  upon  her  husband.  Boiuland  v. 
Perry,  64  K  C.  R.  578. 

10.  In  an  action  which  involved  the  question,  whether  a 
conveyance  of  land  to  a  wife  was  not  based  upon  a  consider- 
ation paid  by  her  husband,  and  was  not,  therefore,  to  be  sub- 
jected to  claims  by  his  creditors,  the  summons  was  directed 
to  both  husbaud  and  wife,  but  the  copy  was  delivered  to  the 
husband  alone:  held,  that  the  judgment  rendered  therein 
against  the  wife  by  default,  must  be  vacated.     Ibid. 

11.  A  summons  (with  warrant  of  attachment)  was  issued 
returnable  November  1st,  but  was  not  returned  until  Govern- 


PEOOESS.— PUBLIC  LAW.  405 

ber  26th,  the  day  before  the  warrant  was  returnable,  and 
then  it  was  returned,  "  Not  to  be  found,"  &c. ;  on  November 
27th  the  plaintiff  was  allowed  to  continue  the  case,  because, 
by  accident,  due  advertisement  had  not  been  made :  held, 
that,  under  the  circumstances,  the  advertisement  was  the  sub- 
stantial process,  and  that  a  failure  duly  to  return  the  sum- 
mons, was  no  discontinuance.     Church  v.  Fumiss,  64  N.  C. 

C.659.  , 

12.  A  motion,  and  not  a  demurrer,  is  the  proper  method 
of  taking  advantage  of  a  discontinuance.     Ibid. 

13.  A  summons  in  a  civil  action  before  a  Justice  of  the 
Peace  does  not  require  to  be  excuted  by  leaving  a  copy  with 
the  defendant;  the  C  C.  P.,  sees.  82  and  504,  rule  15,  not 
embracing  such  process  returnable  before  a  magistrate. 
Kirldandv.  Hogan,  65  N.  0.  E.  144. 

14.  A  summons  issued  from  the  court  of  one  county  can- 
not be  made  returnable  unto  the  court  of  another.  Bower- 
ton  v.  Tate,  W  N.  0.  E.  431. 

15.  In  an  action  against  a  foreign  corporation,  where  the 
plaintiff  resides  in  this  State,  or  when  the  corporation  has 
property  in  the  State,  or  when  the  cause  of  action  arose 
therein,  service  of  a  copy  of  the  summons  upon  the  general 
or  managing  agent  is  sufficient ;  but  where  neither  one  of 
the  conditions  exist,  service  must  be  made  upon  some  one  of 
the  principal  officers.  Cunningham  v.  Southern  Express  Co., 
67  N.  0  E.  425. 

16.  Irregular  process,  after  it  has  been  set  aside,  is  no 
justification  to  the  plaintiff  in  the  action,  or  his  attorneys 
and  aiders.     Woods  v.  Jordan,  69  N.  0.  E.  189. 

17.  A  summons  served  on  defendant  commanding  him  to. 
auswer  on  a  day  certain,  which  day  is  less  than  twenty  days 
from  the  time  of  service,  is  not  uecesssarily  on  that  account 
void,  and  the  Probate  Judge  is  not  bound  to  dismiss  it.  He 
should  have  allowed  the  defendants  the  time  allowed  by  the 
Code  for  an  appearance.     Guion  v.  Melvin,  69  N.  C  E.  242. 

See  (Coroner.) 


PUBLIC  LAW. 

1.  The  occupation  during  the  late  war  of  parts  of  the 
State  by  the  forces  of  the  United  States  cannot  be  regarded 
as  an  occupation  by  a  "public  enemy."  State  v.  Bell,  Phil, 
L.  E.  76. 


406  PUBLIC  LAW. 

2.  A  fictitious  sale  of  a  horse  to  prevent  it  from  being 
impressed  by  the  Confederate  Government  will  not  estop  the 
owner  from  afterwards  asserting  his  title  thereto ;  and  in 
such  case,  upon  the  vendee's  claiming  title  to  the  horse,  the 
vendor  may  bring  suit  without  making  a  formal  tender  of  the 
note  which  was  one  of  the  forms  attending  the  sale.  Lutz 
v.  Yount,  Phil.  L.  E.  307. 

3.  Address  of  Chase,  C.  J.,  to  the  Bar  attending  the  Cir- 
cuit Court  of  the  United  States  at  June  Term,  1867.  Phil. 
L.  E.  389. 

4.  Compulsory  payment  of  a  debt  to  a  receiver  under  the 
Sequestration  Acts  of  the  Confederate  Government,  is  no 
defence  to  a  suit  brought  upon  such  debt  by  the  creditor. 
JShortridge  v.  Macon,  Phil.  L.  E.  392. 

5.  The  suspension  of  intercourse  consequent  upon  the 
recent  war  did  not  prevent  interest  from  accruing  between 
citizens  adhering  to  the  respective  parties  thereto.     Ibid. 

6.  Discussion  and  statement  of  the  principles  in  regard 
to  treason,  &c ,  which  affect  the  position  of  those  who  took 
part  against  the  United  States  in  the  late  war.     Ibid. 

7.  A  lieutenant  and  a  private  in  the  army  of  the  United 
States,  who  by  command  of  their  captain,  took  from  a  citizen 
on  the  17th  of  May,  18G5,  two  horses,  were  thereby  guilty 
of  a  trespass.      Wilson  v.  Franklin,  63  1ST.  C.  E.  259. 

8.  Where  an  officer  in  the  military  service  of  the  Confeder- 
ate States,  whilst  absent  from  such  service  contracted  with  a 
a  railroad  company  to  transport  him  to  the  headquarters  of 
the  army  in  order  to  report  to  the  commander-in-chief,  and 
received  personal  injury  on  the  route  by  the  negligence  of 
such  company  :  held,  that  because  then  and  there  engaged 
in  an  act  of  hostility^to  the  United  States,  he  was  not  entitled 
to  recover  damages.  Turner  v.  N.  C.  B.  R.  Co.,  63  jST.  0.  E. 
522. 

9.  Such  defence  arises  upon  the  plea  of  the  general  issue. 
1  bid. 

10.  The  plaintiff,  in  1864,  at  Elizabeth  City,  within  the 
Federal  lines,  as  sub-agent  for  the  State,  purchased  hats  to 
be  conveyed  to  the  defendant  (his  principal,)  in  Halifax 
county,  within  the  Confederate  lines,  for  the  use  of  the  State 
troops.  The  hats  were  transported  into  Halifax  county  to 
the  residence  of  the  defendant,  but  were  not  sold  to  the 
State  on  account  of  their  high  price,  and  thereupon  the  de- 
fendant purchased  them,  agreeing  to  give  for  each,  thirty 
pounds  of  lint  cotton.  Subsequently  the  defendant  refused 
to  pay  for  them  :  held,  That  the  contract  of  sale  between 


PUBLIC  LAW.  407 

the  parties  was  not  against  the  policy  of  the  government  of 
the  United  States;  that  the  ordinance  and  act  establishing  a 
scale  of  values,  had  no  application  ;  and  that  the  plaintiff's 
measure  of  damages,  was  the  value  of  the  cotton  in  gold  at 
the  time  and  place  of  the  contract,  adding,  for  Treasury 
notes,  the  premium  on  gold  at  the  time  of  the  verdict.  Gar- 
rett v.  Smith,  0±  X.  0.  K,  93. 

11.  Measures  taken  during  the  war  by  parties,  whether 
States,  counties  or  individuals,  the  object  of  which  was  to 
counteract  plans  set  on  foot  by  the  United  States  for  the 
suppression  of  the  rebellion,  were,  and  are,  contrary  to  the 
public  policy  of  that  Government;  and  so,  contracts  arising 
out  of  them,  conuot  be  enforced.  Leake  v.  Comm'rs  of 
Richmond,  04  N.  C.  E.  134. 

12.  Therefore,  notes  taken  for  money  lent,  in  1872,  to  a 
county  to  enable  it  to  provide  salt  for  its  citizens,  and  thus 
aviod  one  of  the  penalties  of  blockade,  are  void.     Ibid. 

13.  The  present  State  and  County  authorities  are  under 
no  obligation  to  fulfil  contracts  made  by  their  predecessors 
during  the  rebellion,  unless  they  come  within  the  provisions 
of  the  Ordinance,  ot  1805,  (October  18th,)  "Declaring  what 
laws  aud  ordinance  are  in  force,"  &c.,  and  that  requires  such 
as  it  validates  to  be  "consistent  with  allegiance  to  the  Uni- 
ted States,"  which  is  not  true  of  the  transaction  in  question. 

14.  The  burden  of  proving  that  any  act  of  the  State  au- 
thorities during  the  late  rebellion  which  maybe  under  debate, 
was  "  consistent  with  allegiances,"  is  owing  to  a  general  posi- 
tion of  these  authorities,  upon  the  party  who  asserts  it.  Ibid. 

15.  Transactions  like  that  under  consideration  fall  under 
the  provisions  of  the  Ordinance,  of  1805,  (Oct.  19th,)  and 
the  Constitution  of  1808,  (Art.  viii,  sec.  13,)  forbidding  the 
payment  of  obligations  incurred  in  aid  of  the  rebellion,  directly 

or  indirectly.    1  bid.  ,     . 

10.  Those  prohibitions  are  merely  declaratory  of  princi- 
ples of  the  common  law  in  regard  to  contracts,  and  therefore 
do  not  impair  the  obligation  of  the  contracts  referred  to.  Ibid. 

17.  The  distinction  between  such  acts  of  the  State  autho- 
rities during  the  recent  war  as  are  valid,  and  such  as  are  not, 
turns  upon  the  enquiry  whether  or  not  they  were  extraordi- 
narv,  arising  out  of  the  condition  of  things,  and  intended  to 
obstruct  or  modify  some  part  of  the  policy  of  the  United 
States  in  regard  to  the  rebellion,  or  not.    Ibid. 

18.  Military  officers  charged  with  a  particular  duty,  may 
take  private  property  for  public  use  without  making  them- 


408  PUBLIC  LAW. 

selves  trespassers,  but  in  such  cases,  the  necessity  must  be 
urgent,  and  as  such  will  not  admit  of  delay,  and  where  action 
upon  the  part  of  civil  authority  in  providing  for  the  want,  will 
be  too  late.     Bryan  v.  Walker,  64  N.  0.  E.  141. 

19.  The  burden  of  proviDg  such  exigency,  in  case  of  suit, 
devolves  upon  the  defendants.     I  hid. 

20.  Therefore,  where  all  that  the  case  showed,  was,  that 
a  wagon  and  two  mules  of  the  plaintiff  bad  been  seized  in 
January,  1863,  in  Wilkes  County,  by  the  defendant  com- 
manding a  detachment  of  Confederate  troops,  under  the  parol 
orders  of  a  Brigadier-General,  for  the  transportation  service 
of  the  detachment;  and  nothing  appeared  as  to  the  exigency 
of  the  necessity  (if  any)  for  such  serviee  :  held,  that  the  de- 
fendants had  not  made  out  a  defence.     Ibid. 

21.  The  State  "  Amnesty  Act "  of  1866,  does  not  include 
cases  of  civil  remedy  for  private  injuries  ;  unless  (sec.  4,)  when 
the  injury  occurred  under  some  law,  or  authority  purporting 
to  be  a  law,  of  the  State;  which  the  parol  orders  here  could 
not  pretend  to  be.    1  bid. 

22.  Qucere  as  to  the  power  of  the  State  to  pass  such  an 
act  in  regard  to  civil  remedies  for  injuries  ?     Ibid. 

23.  Destruction  of  whiskey  by  a  provost-marshal,  under 
the  authority  of  the  Confederate  States,  in  1862,  cannot  be 
claimed  as  the  act  of  a  publicenemy,  by  a  Railroad  Company 
situated  within  the  limits  of  that  government,  and  recognizing 
its  control.     Patterson  v.  N.  C.  B.  B.  Co.,  64  N.  C.  11.  147. 

24.  Leaving  leaking  barrels  of  whisky,  lor  a  day  and  night, 
in  a  car  whose  doors  were  nailed  up,  standing  upon  the  track 
in  a  village,  at  that  time  a  military  post,  was  gross  negli- 
gence ;  and  rendered  the  Railroad  Company  responsible  for 
its  destruction  by  the  provost-marshal  under  his  authority  in 
matters  of  police.     1  bid. 

25.  During  the  late  war,  an  administrator,  having  in  his 
hands  a  distributive  share  belonging  to  one  of  the  next  of 
kin  residing  in  Illinois,  upon  being  called  upon  by  the  Dis- 
trict Court  of  the  Confederate  States  to  answer  certain  in- 
terrogatories propounded  for  the  purpose  of  finding  whether 
he  had  in  hand  any  property  liable  to  sequestration,  without 
demur  or  further  requisition,  paid  over  to  the  receiver  such 
distributive  share,  five  months  before  he  settled  up  the  estate : 
held,  that  he  did  not  therein  exhibit  ordinary  care,  and  there- 
fore was  still  responsible  to  the  next  of  kin,  for  such  share. 
Fisher  v.  Bitchey,  64  K  C  K.  172. 

26.  A  contract  made  during  the  recent  war, — a  part  of 
the  consideration  for  which  was  the  carrying  of  the  mail  of 


PUBLIC  LAW.  409 

the  Confederate  States  by  the  defendants,  cannot  now  be  en- 
forced, beiug  against  the  policy  of  the  government.  Clem- 
mons  v.  Hampton,  64  N.  C.  R.  264. 

27.  Obiter,  the  contract  being  void,  property  purchased 
by  the  defendant  in  the  course  of  it  may  be  recovered,  or 
damages  had  for  its  conversion.     Ibid. 

28.  Where  a  horse  was  taken  from  a  private  citizen  of 
Randolph  county,  about  the  2nd  of  May  1865,  (it  did  not  ap- 
pear by  whom,)  and  afterwards,  (July  26th  1865,)  was  sold 
at  a  public  government  sale  held  in  Raleigh,  by  au  A.  Q.  M. 
of  the  U.  S.  Army,  being  then  branded  as  United  States 
property :  held,  that  the  title  of  the  original  owner  was  not 
thereby  extinguished.     Black  v.  Jones,  64  N.  0.  R-  318. 

29.  A  charter  granted  by  the  State  Convention  of  18fil-'2, 
is  valid,  if  included  within  the  terms  of  the  18th  of  October, 
1865.     Sapona  Co.  v.  Holt,  64  N.  0.  R.  335. 

30.  That  such  charter  required  the  Board  of  Directors  to 
be  "  citizens  of  the  Confederate  States,"  is  immaterial.    Ibid. 

31.  Money  lent  to  a  county  during  the  recent  war,  in 
order  to  procure  salt  for  the  use  of  soldiers'  families  and 
others,  cannot  be  recovered  ;  nor  does  it  make  any  difference 
that  the  debt  has  been  recognized  by  the  county  since  the 
surrender,  and  a  part  of  it  paid.  Setser  v.  Commissioners  of 
Catawba,  64  N.  C.  R.  516. 

32.  Quaere,  Whether  county  officers  who  pay,  and  the 
creditor  who  receives  payment  of,  such  money,  are  not  liable 
to  repay  it  to  the  county.     Ibid. 

33.  Money  lent  with  the  knowledge  that  it  is  to  be  used 
in  equipping  a  military  company  about  to  enter  the  service 
of  the  Confederate  States,  cannot  be  recovered,  the  consider- 
ation being  illegal.  Smitherman  v.  Saunders,  64  N.  C.  R. 
522. 

34.  That  it  was  not  lent  for  the  express  purpose  of  equip- 
ping such  company,  but  merely  because  the  plaintiff  had 
money  to  lend,  is  immaterial.     Ibid. 

35.  A  bond  given  in  consideration  of  the  loan  of  money 
with  which  to  put  a  substitute  into  the  Confederate  army,  is 
upon  illegal  consideartion,  and  therefore  cannot  be  enforced. 
Critcher  v.  Holloway;  S.  P.  Kingsbury  v.  Gooch,  64  "N".  C  R. 
526  and  528. 

36.  The  Board  of  County  Commissioners  is  not  the  repre- 
sentative of  the  former  County  Court,  even  as  regards  mat- 
ters of  administration  ;  therefore,  a  suit  pending  against  the 
latter,  at  the  time  of  its  dissolution,  cannot  be  revived 
against  the  former.  Carson  v.  Comm'rs  of  Cleaveland,  Co.9 
64  N.  C.  R.  566. 


410  PUB.  LAW,  PRINT'G,  TEE  AS 'E.— RAILWAYS. 

37.  Cities,  &c,  are  responsible  to  their  officials  for  ser- 
vices rendered  to  them  by  the  latter  during  the  existence  of 
the  Provisional  Government.  Boyle  v.  Newbern,  04  N.  0.  R. 
G64. 


PUBLIC   PRINTING. 
See  (Office  and  Officer,  25.) 


PUBLIC  TREASURER. 

1.  The  Public  Treasurer  is  not  bound,  under  the  ordi- 
nance of  the  Convention,  ratified  the  11th  of  March,  1808, 
to  accept  "special  tax  bonds"  and  to  deliver  a  like  amount  of 
Chatham  Railroad  bonds  in  exchange  therefor,  to  th  e  Raleigh 
and  Augusta  Air-Line  Railroad  Company.  Raleigh  and 
Augusta  Air-Line  Railroad  Company  v.  D.  A.  Jenkins,  08 
N.  C.  R.  499. 

2.  The  court  has  power  to  compel  the  Public  Treasurer 
to  do  only  such  an  act  as  involves  no  official  discretion,  and 
as  is  required  by  an  express  command  of  the  General  Assem- 
bly.    Ibid,  502. 

3.  Under  the  ordinance  of  the  Convention,  made  11th  of 
March,  1808,  in  favor  of  the  Chatham  Railroad  Company, 
the  Public  Treasurer  is  not  bound  to  accept  in  exchange  for 
mortgage  bonds  of  said  Company  any  State  bonds  issued 
after  the  passage  of  the  ordinance.     Ibid. 


RAILWAYS. 

1.  Where  the  charter  of  a  Rail  Road  Company  provided, 
that  upon  the  failure  by  subscribers  to  its  stock  to  pay  instal- 
ments as  called  for,  "  the  directors  may  sell  at  public  auction," 
&c,  such  stock,  and,  in  case  enough  were  not  produced  there- 
by to  satisfy  the  subscription,  might  sue  for  and  recover  the 
balance  from  such  subscriber :  held,  that  upon  a  failure  by  a 
subscriber  to  pay  instalments  as  called  for,  it  was  optional 
with  the  company  to  bring  suit  against  him  without  making 
sale  as  above,  or,  to  sell  and  sue  for  the  balance.  Western 
R.  R.  Co.  v.  Avery,  04  N.  C  R.  491. 


RAILWAYS,  411 

2.  Also,  that  the  plea  of  the  statute  of  limitations  barred 
a  recovery  ot  so  much  of  such  subscriptiou  as  was  included  in 
calls  made  more  than  three  years  before  suit  was  commenced. 
Ibid. 

3  A  Railroad  Company  may  dispense  with  the  assess- 
ment of  damages  by  commissioners  for  passing  over  the  land 
of  a  proprietor,  by  promising  to  settle  and  pay  it  without  as- 
sessment, and  the  laud  owner  may  recover  upou  the  special 
promise.     Plott  v.  W.  N.  C  E.  E.  Co.,  Go  N.  0.  R.  74. 

4.  The  Korth  Carolina  Rail  Road  Company  is  not  required 
under  the  2Gth  section  of  the  charter  to  construct  crossings 
and  bridges  over  their  track  except  where  public  roads  cross 
the  same,  which  have  been  kept  up  by  the  appointment  of 
overseers  and  hands  to  work  and  keep  them  in  repair.  Coon 
v.  N.  C,  E.  E.  Co.,  65  N.  C.  R.  507. 

5.  It  is  enacted  by  the  Act  of  185G-'57,  ch.  7,  "that  when 
any  cattle  or  other  live  stock  shall  be  killed  or  injured  by  the 
engines  or  cars  running  upon  any  railroad,  it  shall  be  prima 
facie  evidence  of  negligence ;"  this  rule  can  only  be  rebutted 
by  showing  that  the  agents  of  such  railroad  company  used  all 
proper  precautious  to  guard  against  damage.  It  is  not  suffi- 
cient to  prove  that  there  was  probably  no  negligence.     Battle 

W.  &  W-  E.  E.  Co.,  GG  N.  C.  R.  343. 

G.  Independent  of  The  legal  presumption,  where  railroad 
•cars  were  left  on  an  inclined  plane,  where  they  could  be  easily 
set  in  motion,  and  were  very  insecurely  fastened,  and  one  of 
the  animals,  for  the  killing  of  which  this  suit  was  brought, 
was  killed  a  month  previous  to  the  other,  by  a  car,  which  had 
escaped  and  run  down  the  same  grade,  and  the  agents  of  the 
defendant  being  thus  apprised  of  the  danger  of  such  action, 
did  not  use  proper  precautions  to  prevent  further  injury : 
held,  to  be  gross  negligence,  fur  which  the  company  was  re- 
sponsible.    Ibid. 

7.  "Where  a  railroad  compan}T  issued  bonds,  payable  at 
their  office,  in  a  particular  way,  and  at  the  maturity  of  the 
bonds  there  was  no  office  of  the  company  at  the  place:  held, 
that  a  demand  for  payment  elsewhere  was  sufficient.  Alex- 
ander v.  Tenn,,  Ohio  &  At.  E.  E.  Co.,  G7  X.  0.  R.  198. 

8.  A  bond  of  a  railroad  company  for  the  payment  of 
money,  executed  in  18G2,  conies  within  the  provision  of  the 
ordinance  of  the  Convention  of  18G5,  and  is  "  presumed  to 
be  solvable  in  money  of  the  value  of  Confederate  currency, 
subject  to  evidence  of  a  dilfereut  intent  by  the  parties." 
Ibid. 

i).     In  the  absence  of  all  evidence  to  show  the  cbusidera- 


412  EAILWAYS. 

lion  of  such  bonds,  or  that  the  parties  intended  otherwise 
than  is  presumed  by  the  ordinance,  a  different  intent  will  not 
be  implied  from  a  provision  in  the  charter,  that  the  Company 
may  make  contracts  for  building  the  road,  and  may  pay  con- 
tractors in  bonds  at  par  value.     Ibid. 

10.  Where  the  owner  of  land  seeks  to  recover  damages 
for  the  injury  resulting  from  the  location  of  a  railroad  on  his 
laud,  he  must  pursue  the  remedy  prescribed  by  the  charter 
of  the  railroad  company,  as  this  statutory  provision  takes 
away,  by  implication,  the  common  law  remedy  by  action  of 
trespass  on  the  case.  Mclntire  v.  W.  N.  C.  B.  B.  Co.,  67 
K".  0.  E.  278. 

11.  A  sale  of  shares  of  stock  in  a  railroad  company  car- 
ries with  it  the  dividends  declared  by  the  company ;  if  tbey 
are  to  be  paid  at  a  day  subsequent  to  the  transfer  of  the 
stock.  Burroughs  &  Springs  v.  N.  C  B.  B.  Co.,  67  N.  0. 
E.  376. 

12.  Therefore,  where  the  North  Carolina  Eailroad  Com- 
pany declared  a  dividend  on  the  stock  of  said  Company,  on 
the  16th  day  of  February,  1870,  to  be  paid  on  the  first  days 
of  April  and  July  thereafter,  and  the  owner  of  certain  shares 
of  stock  sold  and  transferred  the  same  on  the  17th  day  of 
February :  held,  that  the  purchaser  of  said  shares  of  stock 
acquired  the  dividends,  as  well  as  the  stock.     Ibid. 

13.  A  complaint  seeking  to  charge  the  lessee  of  the  N. 
C.  Eailroad  with  damages,  for  refusing  to  transport  the  com- 
plainant, to  whom  the  lessor  of  said  road  had  issued  a  free 
pass  for  life,  not  alleging  any  obligation  on  the  part  of  the 
lessee,  by  contract  or  otherwise,  to  carry  the  complainant 
over  the  road,  free :  held,  to  be  bad  on  demurrer,  and  that 
the  Judge  below  was  right  in  dismissing  it;.  Turner  v.  Bich- 
mond  &.  Danville  B.  B.  Co.,  70  N.  C  E.  1. 

14.  The  free  pass  given  by  the  lessor,  the  N.  C.  Eailroad 
Company,  was  only  a  license,  without  any  consideration  in 
law,  which  that  company  could  revoke  at  pleasure,  and  did 
revoke  by  leasing  the  road  to  the  defendant.     Ibid. 

15.  The  North  Carolina  Eailroad  Company,  as  well  by  its 
charter,  Act  of  1848-9,  chap.  72,  and  the  supplemental  acts 
thereto,  as  upon  general  principles,  has  the  power  to  deposit 
or  loan  its  surplus  funds,  and  of  course  may  bring  the  neces- 
sary actions  to  recover  the  sums  loaned.  North  Carolina  B. 
B.  Co.  v.  Moore,  70  N-  C.  E.  6. 

16.  In  a  suit  to  recover  damages  for  certain  trespasses 
brought  by  one  Board  of  Directors  of  a  railroad  company 
against  another  Board,  claiming  to  be  the  legally  appointed 


RAILWAYS.— EAPE.  413 

Directors  of  the  same  company  :  It  was  held,  first,  that  the 
Board  de  facto  in  possession  of  the  franchises  of  the  corpora- 
tion may  maintain  an  action  for  any  trespass  respecting  the 
corporate  property  ;  and  that  the  acts  ot  such  de  facto  offi- 
cers cannot  he  collaterally  impeached;  the  proper  way  of 
trying  the  right  or  title  to  the  office  being  by  an  action  in 
the  nature  of  a  quo  warranto  :  held,  second,  that  the  defen- 
dants could  not  justify  such  alleged  trespasses  under  color  of 
proceedings  had  by  a  Justice  of  the  Peace  under  the  pro- 
visions of  the  Eev.  Code,  chap.  49.  (Forcible  Entry  and 
Detainer,)  as  the  Justice  in  such  case  had  no  jurisdiction. 
Atlantic,  Tennessee  and  Ohio  Railroad  Co.  v.  Johnston,  70 
K".  0.  R.  348. 

17.  A  President  de  facto  of  a  railroad  company,  when  a 
suit  is  pending  in  which  his  right  to  the  office  is  to  be  tried, 
and  just  before  the  decision  of  such  suit,  has  no  right  to 
make  a  distribution  of  the  funds  of  the  company  to  such 
creditors  as  he  may  elect  to  give  preference.  Walker  v. 
Fleming,  70  N.  0.  R.  483. 

18.  For  the  ordinary  purposes  of  the  company,  and  in 
order  to  keep  the  machinery  in  motion,  a  de  facto  president 
will  be  recognized  as  having  power  to  act.     Ibid. 

See  (Common  Carriers  passim.)  (Custom.)  (Public  Law, 
8,  23,  24.) 


RAPE. 

1.  The  prisoner,  a  stranger  to  the  prosecutrix,  who  was 
a  girl  of  between  13  and  14  years  of  age,  had  met  her  upon 
her  way  to  a  neighbor's,  and  offered  to  go  home  with  her,  a 
distauce  of  less  than  a  mile ;  his  offer  being  accepted,  he  dis- 
missed some  children  who  had  been  acting  as  her  guide:  held, 
that  the  girl's  following  him  out  of  the  road  for  a  short  dis- 
tauce into  the  woods  ;  as  also  her  not  stopping  upon  her  way 
home,  after  the  alleged  rape  had  been  committed,  to  tell  her 
aunt  of  it,  (she  having  passed  her  aunt's  house  and  seen  her) 
— did  not  ivarraut  a  prayer  for  a  charge  to  the  jury  that  the 
evidence  of  the  prosecutrix  should  be  disregarded  altogether. 
State  v.  Marshall,  Phil.  L.  R.  49. 

2  For  a  conviction  of  rape,  since  the  passage  of  the  act 
of  1860-'l,  chap.  30,  it  is  sufficient  that  the  fact  of  penetra- 
tion be  established  ;  and  to  establish  such  fact,  it  is  not  re- 
quired, that  the  witness  should  use  any  particular  form  of 
words.     State  v.  Hodges,  Phil.  L  R.  231. 


414  EAPE.-RECEIVER  -RECEIV'G,  &C.-RECOGNIZ. 

3.  The  opinion  of  medical  experts  is  admissible  as  to  the 
age  of  a  child  upon  whom  the  crime  of  "carnally  knowing," 
&c,  under  the  statute,  Rev.  Code.  chap.  34,  s.  5,  is  charged. 
State  v.  Smith,  Phil.  L.  R.  302. 

4.  An  indictment  under  the  statute  need  not  charge  that 
the  prisoner  ravished  the  child.     Ibid. 

5.  An  indictment  for  rape  need  not  charge  that  the  per- 
son ravished  is  over  ten  years  of  age.  State  v.  Storkey,  63 
N".  0.  R  7. 

6.  The  least  penetration  of  the  person  of  a  female  against 
her  will,  constitutes  rape.  State  v.  Har grave,  65  N.  0.  R. 
466. 

See  (Evidence — In  criminal  Proeediugs  and  Indictments, 
23.) 


RECEIVER. 

While  property  is  in  the  hands  of  a  receiver,  no  right  to  it 
can  be  acquired  by  sale  under  execution  ;  and  it  makes  no 
difference  that  the  receiver  appointed,  decline  to  act,  the 
property  was  nevertheless  in  the  custody  of  the  law.  Skin- 
ner v.  Maxwell,  68  N.  0.  R.  400. 


RECEIVING  STOLEN  GOODS. 

If  a  person  receive  stolen  goods,  knowing  them  to  be  such, 
nat  for  the  purpose  of  making  them  his  own,  or  of  deriving 
profit  from  them,  but  simply  to  aid  the  thief  in  carrying 
them  off,  he  is  guilty  of  the  crime  of  receiving  stolen  goods* 
knowing  them  to  have  been  stolen.  State  \.  Bushing,  6J  N. 
C.  R.  29. 


RECOGNIZANCE. 

1.  When  a  defendant  in  an  indictment  entered  into  a  re- 
cognizance for  his  appearance  at  a  term  of  the  Superior 
Court,  and  he  appeared  at  said  term  and  the  cause  was  con- 
tinued, but  he  was  required  to  enter  into  bond  for  his  appear- 
ance the  succeeding  term,  which  he  failed  to  do,  and  departed 
without  leave  of  the  court :  held,  that  he  might  be  called  out 


RECOGNIZANCE.— EEOOED.  415 

on  a  subsequent  clay  of  the  term  and  the  failure  noted  upon 
the  record.     Stale  v.  Smith,  66  N.  0.  R.  620. 

2.  In  such  cases  it  is  not  regular  to  enter  a  judgment 
nisi.  "A  recognizance  is  a  debt  of  record,  and  the  object  of 
a  scire  facias  is  to  notify  the  cognizor  to  show  cause  where- 
fore the  cognizee  should  not  have  execution  of  the  sum  thereby 
acknowledged.  No  judgment  of  forfeiture  is  required  before 
issuing  a  scire  facias.     Ibid.  - 

3.  Where  a*  State's  warrant  was  issued  agaiust  several 
persons,  one  of  whom  was  not  arrested,  but  went  before  a 
Justice  of  the  Peace  and  entered  into  a  recognizance  to  ap- 
pear at  a  future  time,  and  failed  to  appear,  and  the  Justice 
afterwards  re-issued  said  warrant,  without  any  special  com- 
mand endorsed  thereon  :  held,  that  the  person  who  had  en- 
tered into  the  recognizance,  could  not  be  arrested  on  said  war- 
rant. That  the  warrant  was  functus  officio,  and  that  the  officer 
acting  under  it  was  a  trespasser.  State  v.  Queen,  GG  N.  0.  R. 
G15. 

4.  An  agreement  by  a  Solicitor  for  the  State,  to  discharge 
a  defendant,  it  he  would  become  a  State's  witness  against  a 
co-defendant,  which  he  did  so  far  as  to  go  before  the  grand 
jury  and  be  examined,  and  then  left  the  court,  will  not  re- 
lieve such  defendant  from  a  forfeited  recognizance.  A  recog- 
nizance is  a  matter  of  record,  and  can  only  be  discharged  by 
a  record,  or  something  of  equal  solemnity.  State  v.  Moody, 
69  N.  0.  R.  521). 

5.  The  discharge  of  a  defendant,  or  the  entering  a  nol. 
pros,  is  within  the  control  of  court,  though  in  practice,  usu- 
ally left  to  the  discretion  of  the  Solicitor.     Ibid. 


RECORD. 

1.  When  Acts  of  the  Assembly  provided  that  certain 
orders  of  the  county  courts  might  be  made,  a  majority  of  the 
justices  being  present,  the  record  must  show  affirmatively  a 
compliance  with  that  condition.  Leak  v.  Commissioners,  64 
N.  0.  R.  132. 

2.  Superior  Courts  will  not  compel  the  Clerk  of  the  Supe- 
rior Court,  who  has  the  legal  custody  of  the  records  of  the 
late  County  Courts  to  surrender  such  records  to  the  Board 
Commissioners  to  be  altered  by  said  Commissioners.  Com- 
nCrs  of  Forsyihe  County  v.  Blackburn,  68  N.  C.  R.  40(5. 

3.  Entries  on  the  books  of  the  County  Courts  in  relation 


416  RECORD  — RECORD ARI  AND  SUPERSEDEAS. 

to  a  vote  of  the  people  on  the  question  of  subscription  or  no 
subscription  to  the  stock  of  a  railroad  compaDy,  and  the  ac- 
tion of  said  court  in  relation  to  subscription,  and  as  to  the 
Justices  who  were  present,  although  not  records,  are  written 
evidence,  which  the  public  and  third  persons  may  have  an 
interest  to  preserve  in  its  original  integrity.     1  bid. 


RECORDARI  AND  SUPERSEDEAS. 

1.  The  law  favors  trials  upon  the  merits;  therefore,  where 
a  judgment  by  a  Justice  of  the  Peace  was  given  against  the 
petitioner  iu  his  absence,  and  without  his  knowledge,  and 
he  was  deprived  of  an  appeal  on  account  of  the  irregularity 
of  his  proceedings  therefor ;  where,  besides,  he  made  an  affi- 
davit setting  forth  merits,  and  was  not  chargeable  with  un- 
reasonable delay  in  applying  for  such  relief-,  held,  that  he 
was  entitled  to  a  recordari.  Gritcher  v.  McCadden,  64  N". 
C  R,  262. 

2.  Where  a  suit  before  a  Justice  is  for  a  money  demand, 
it  is  erroneous  for  him,  after  giving  a  judgment  for  the  amount 
claimed,  to  add  ''to  be  paid  iu  JNorth  Carolina  bank  money 
at  par,  of  any  bank  in  the  State  ;"  and  upon  the  return  of  a 
writ  of  recordari  and  the  assignment  of  such  error  in  the 
Justice's  judgment,  the  Superior  Court  should  not  order  the 
case  to  be  placed  on  the  trial  docket,  but  reverse  the  judg- 
ment for  the  plaintiff.     Swain  v.  Smith,  65  N.  C.  R.  211. 

3.  Before  an  application  for  a  recordari  can  be  enter- 
tained, petitioner  must  aver  that  he  has  paid,  or  offered  to 
pay,  the  Justice's  fees.     Steadman  v.  Jones,  65  N.  C.  R.388. 

4.  An  order  for  a  recordari  should  be  accompanied  with 
an  order  for  a  supersedeas,  and  suspension  of  execution.  Ibid. 

5.  Where  the  right  of  a  party  to  a  recordari,  as  a  substi- 
tute for  an  appeal  from  a  Justice's  judgment,  depends  upon 
the  facts  proved  or  admitted  before  the  Judge  of  the  Supe- 
rior Court,  it  is  his  duty  to  find  and  state  the  facts  upon 
which  he  proceeds  to  act,  and  if,  upon  an  appeal  to  the  Su- 
preme Court,  such  facts  do  not  appear  to  have  been  fouud 
and  stated,  that  Court  must  overrule  the  decision  below, 
because  the  Supreme  Court  cannot  try  any  "issue  of  fact." 
Collins  v.  Gilbert,  65  N.  O  R.  135. 

6.  Where,  but  for  errors  alleged,  the  record  would  sus- 
tain the  judgment  given  iu  the  Court  below,  it  must  be  sus- 
tained by  the  Supreme  Court,  unless  the  errors  are  shown. 


EECOEDAEI  AND  SUPERSEDEAS.  417 

But  the  case  is  otherwise  when  there  is  nothing  in  the  record 
to  sustain  the  judgment  of  the  Court  below.     Ibid. 

7.  When  the  writ  of  recordari  is  used  as  a  writ  of  false 
judgment,  as  it  may  be  in  this  State,  upon  its  return  in  which 
the  proceedings  before  the  Justice  of  the  Peace  are  certified, 
the  plaintiff  in  the  writ  must  assign  his  errors,  and  then  the 
proceedings  will  be  the  same  as  in  other  writs  of  error. 
Strain  v.  Smith,  05  8.  0.  B. "211. 

8.  Where  a  Justice's  judgment  is  given  for  the  plaintiff 
and  the  defendant  brings  error,  there  shall  only  be  a  judg- 
ment to  reverse  the  former  judgment,  for  the  writ  of  recor- 
dari is  only  brought  to  be  eased  and  discharged  of  that  judg- 
ment. But  when  the  plaintiff  brings  the  writ,  the  judgment, 
if  erroneous,  shall  not  only  be  reversed,  but  the  court  shall 
also  give  such  judgment  as  the  court  below  should  have 
given ;  tor  his  writ  is  to  revive  the  first  cause  of  action,  and 
what  he  ought  to  have  recovered  by  the  first  suit,  wherein 
the  erroneous  judgment  was  given.     Ibid. 

9.  If  a  party  has  merits  and  desires  a  new  trial  in  the 
Superior  Court,  upon  a  matter  heard  before  a  Justice  of 
the  Peace,  he  must,  by  a  proper  application,  obtain  a  writ  of 
recordari  as  a  substitute  for  an  appeal.  The  writ  of  recordari 
and  not  certiorari  is  the  proper  remedy,  the  Justice's  Court 
not  being  a  court  of  record.     Ledbetter  v.  Osborne,  GO  X.  C. 

E.  379. 

10.  A  plaintiff  who  appealed  from  the  j  udgment  of  a  Jus- 
tice of  the  Peace  for  less  than  $2.3,  in  his  favor,  he  claiming 
more,  and  the  Judge  having  affirmed  the  judgment  on  the 
papers  sent  up  to  him,  under  sec.  539,  C.  0.  P.,  is  not  enti- 
tled to  a  recordari  to  the  Justice  as  the  case  has  already  been 
removed  from  his  court,     Cowles  v.  Haynes,  67  N.  C  E,  128. 

11.  Where  a  petition  to  a  Judge  set  forth,  that  certain 
judgments  were  rendered  by  a  Justice  of  the  Peace  against 
the  petitioner  as  executor,  while  he  was  absent  from  the 
State,  and  without  his  knowledge,  that  the  summons  was  not 
served  upon  him,  but  service  was  accepted  by  an  Attorney 
employed  to  act  as  counsel  in  the  management  of  the  estate, 
but  with  no  authority  to  accept  sevrice  of  legal  process,  and 
that  said  Attorney  appeared  on  the  trial,  before  the  Justice, 
against  the  petitioners,  &c  ;  held,  to  be  a  proper  case  for  a 
recordari  and  supersedeas.  Caldwell  v.  BeatUj,  09  X.  C  E. 
142 

12.  A  recordari  is  a  substitute  for  an  appeal,  where  the 
party  has  lost  his  right  to  an  appeal,  otherwise  than  by  his 
own  default.     Marsh  v.  Cohen,  08  N.  C.  E.  283. 

27 


418  EECOEDAEI,  &c— EEFEEENCE  UNDEE  C.  0.  P. 

13.  Where  in  an  application  for  recordari,  it  appeared 
that  A  was  informed  by  a  Justice  of  the  Peace,  that  B  had 
obtained  before  him  (the  J.  P.)  a  judgment  against  him,  and 
A  at  the  time  notified  the  J.  P.  of  his  intention  to  appeal,., 
and  in  order  to  stay  proceedings  pending  the  appeal,  filed  in 
the  office  of  the  Clerk  of  the  Superior  Court  an  undertaking, 
before  one  whom  he  supposed  to  be  a  deputy  of  the  clerk, 
who  approved  the  same  and  issued  a  supersedeas,  and  where 
it  further  appeared  that  the  judgment  was  not  given  against 
A  at  the  time  he  was  informed  by  the  J.  P.  it  was  so  given, 
but  not  until  after  he  had  filed  the  undertaking  :  held,  that 
although  the  clerk,  when  informed  of  the  act  of  his  deputy, 
notified  the  Justice  and  the  defendant  that  he  did  not  ap- 
prove the  undertaking,  and  revoked  the  supersedeas,  and 
though  it  further  appeared,  that  ten  days'  notice  of  the  appeal 
had  not  been  given,  as  required  by  sec.  536,  of  the  0.  C.  P., 
A  was  not  in  default,  and  that  his  Honor  below  committed 
no  error  in  granting  the  recordari.     Ibid. 

14.  To  stay  proceedings,  pending  the  review  of  a  decision 
of  the  clerk  in  regard  to  the  sufficiency  or  insufficiency  of  an 
undertaking  for  an  appeal,  a  supersedeas  is  the  proper  mode, 
and  not  an  injunction.     Saulsbury  v.  Cohen,  68  IS.  C.  E.  289. 

15.  A  writ  of  recordari  is  sometimes  used  as  a  writ  of 
false  judgment  to  bring  up  a  case  in  order  to  review  an  al- 
leged error  in  law,  and  it  is  sometimes  used  as  a  substitute 
for  an  appeal,  in  which  case  the  whole  matter  is  tried  de  nova 
in  the  higher  court.     Caldwell  v.  Beatty,  69  N.  C.  E.  365. 

16.  Where  the  error  alleged  is  a  defect  of  jurisdiction 
such  error  may  be  corrected  upon  a  writ  of  recordari,  used 
as  a  writ  of  false  judgment,  although  the  party  may  have 
neglected  to  avail  himself  of  the  right  of  appeal.     Ibid. 

See  (Practice — In  the  Supreme  Court,  8.) 


REFERENCE  UNDER  THE  C.  C.  P. 

1.  Under  the  C.  C.  P.,  sees.  244  and  245,  a  compulsory 
reference  cannot  be  ordered  by  the  court  in  a  suit  on  a  judg- 
ment confessed  by  the  defendants  as  executors  before  the 
late  civil  war,  where  the  only  matters  of  defence  are  pay- 
ments made  by  them  in  Confederate  currency  during  the 
war,  and  alleged  counterclaims  for  notes  due  from  the  plain- 
tiffs to  them  as  executors.  Such  a  case  does  not  require 
"  the  examination  of  a  long  account  on  either  side,"  nor  is. 


REFERENCE  UNDER  THE  0    0.  P.  419 

the  "  taking  of  an  account  necessary  for  the  information  of 
the  court"    Hall  v.  Craige,  05  X.  0.  R.  51. 

2.  Referees  appointed  by  au  order  of  court  need  not  have 
a  formal  or  written  notice  of  their  appointment  It  is  suffi- 
cient that  they  are  appointed,  meet  and  make  an  award. 
Allison  v.  Bryson,  65  N.  0.  R.  44. 

3.  A  reference  may  be  made,  by  consent  of  the  parties, 
to  persons  who  are  interested  in  the  subject  matter  of  the 
suit.  Quere,  whether  it  would  make  any  difference  if  the 
parties,  or  either  of  them,  were  ignorant  of  the  fact  of  inter- 
est in  the  referees  ?     /  bid. 

4.  Referees  are  not  obliged  to  report  the  evidence  upon 
which  their  award  is  founded.  Ibid.  (Note — See  Post,  10, 
21,  28.) 

5.  An  exception  to  an  award  that  it  is  contrary  to  law  is 
too  indefinite.  In  the  absence  of  fraud,  or  the  mistake  of 
law,  where  they  intend  to  decide  according  to  law  and  mis- 
take it,  the  arbitrators  are  a  law  unto  themselves.     Ibid. 

6.  If  a  suit  which  involves  the  taking  an  account  be  re- 
ferred, it  is  the  duty  of  the  referees  to  state  distinctly  in 
their  report  their  conclusions  both  as  to  matters  of  fact  and 
matters  of  law,  so  that  the  Judge  may  review  their  findings- 
both  as  to  the  facts  and  the  law,  and  the  Supreme  Court 
may,  in  case  of  an  appeal,  review  his  decision  upon  ques- 
tions of  law.     Kluttz  v.  McKenzie,,  65  N.  0-  R.  102. 

7.  It  is  error  in  an  order  to  refer  the  matters  in  contro- 
versy in  a  suit  without  the  conseut  of  the  parties  to  the 
attorney  of  one  of  them,  it  being  the  same  as  if  the  refer- 
ence were  made  to  the  party  himself.  Eason,  v.  Saunders, 
65  K  0  R.  210. 

8.  Facts  which  are  found  by  a  referee,  and  approved  by 
the  court,  are  not  the  subject  of  review  by  this  court.  II y- 
man  v.  Devereux,  65  N.  0.  R.  588. 

9.  When  a  reference  is  made  to  a  Commissioner  to  state- 
an  account  and  report  to  a  certain  term  of  a  Court,  and  the- 
report  is  made  to  that  term,  if  exceptions  be  not  filed  at  the- 
same  term,  the  report  should  be  confirmed  and  judgment- 
given,  upon  a  motion;  and,  if  the  motion  be  not  made  at  that 
time,  it  is  a  matter  of  discretion  with  the  Court  whether  to 
allow  exceptions  to  be  filed  at  a  subsequent  term.  State  ex. 
rel.  Cox,  Solicitor,  v.  Peebles,  67  N.  C.  R.  97. 

10.  If  the  Commissioner  fails  to  file  the  evidence  with  his 
report,  the  objection  can  only  be  taken  by  exception  to  the 
report.    Ibid. 

11.  A  judgment  upon  the  report  of  a  Commissioner,  in  au 


420  REFERENCE  UNDER  THE  0.  C.  P. 

action  on  a  guardian  bond,  is  like  a  decree  in  a  suit  in  equity, 
and  may  be  conditional  in  its  form,  if  the  circumstances  of 
the  case  require  it.     Ibid. 

12.  The  provision  in  section  247,  0.  0.  P.,  that  if  the  re- 
ferees fail  to  deliver  a  report  within  sixty  days  from  the  time 
the  action  shall  be  finally  submitted,  either  party  may  end 
the  reference,  applies  only  (as  the  Court  are  strongly  inclined 
to  think)  to  cases  in  which  the  reference  is  by  consent,  and 
not  compulsory  under  sec  245,  or  at  least  it  does  not  apply 
to  a  reference  to  take  an  administration  account  made  by  or- 
der of  the  Court.     Maxwell  v.  Maxwell,  07  N.  C.  R.  383. 

13.  By  "final  submissions"  is  not  to  be  understood  the 
order  of  reference  or  ceasing  to  take  testimony,  but  when  the 
parties  have  made  arguments  or  decline  to  do  so,  or  when 
they  have  told  the  referees  that  the  case  was  submitted.  Ibid. 

14.  The  discretion  of  a  Superior  Court  Judge  to  set  aside 
a  report  of  a  referee,  on  the  ground  of  a  newly  discovered  tes- 
timony, cannot  be  reviewed  in  the  Supreme  Court.  Test  v. 
Cooper,  68  N.  C.  R.  181. 

15.  The  taking  and  reporting  an  account  by  the  Master, 
or  Clerk,  to  whom  the  Court  has  referred  it,  involves  the  ex- 
ercise of  the  judgment  and  discretion  of  such  referee,  which 
he  cannot  delegate  to  another.  And  it  is  no  proper  exercise 
of  his  judgment  and  discretion  wheu  he  simply  adopts  an  ac- 
count which  has  been  stated  by  another,  whether  the  account 
so  adopted  has  been  takeu  in  the  same  suit  or  in  some  other. 
Larkins  v.  Murphy,  G8  N.  C.  R.  381. 

16.  When  a  case  is  referred  without  the  written  consent 
of  the  parties  as  required  by  the  244th  section  of  thes0.  C.  P., 
and  both  parties  appear  before  the  referee  and  examine  tes- 
timony, and  the  report  is  afterwards  made  and  confirmed  in 
the  Superior  Court,  and  a  judgment  given  upon  it  from  which 
an  appeal  is  taken  to  the  Supreme  Court,  it  is  too  late  to  ob- 
ject in  that  Court  to  the  order  of  reference  as  having  been 
improperly  made  in  the  Superior  Court.  Johnston  v.  Hay nes, 
08  N.  C  R  509. 

17.  When  an  account  and  the  report  of  a  referee  thereon 
is  directed  to  be  modified  and  corrected  in  this  Court,  and  it 
is  referred  to  the  clerk  of  this  Court  to  make  the  necessary 
corrections,  no  evidence  is  admissible  before  him  to  show 
that  the  account  which  had  been  passed  upon  by  this  Court 
was  erroneous.  In  such  a  case  the  duties  are  only  clerical, 
and  the  clerk  is  right  in  confining  himself  to  them.  Ibid, 
516. 


EEFEEENCE  UNDEE  THE  0.  C.  P.  421 

IS.  The  examination  of  a  witness  before  a  referee,  which. 
was  taken  in  the  presence  of  the  parties  to  the  suit,  and 
signed  by  the  witness  who  has  since  died,  may  be  read  as 
evidence  on  the  trial  of  the  suit,  in  which  such  examination 
was  taken.     Nuttv.  Thompson,  69  N.  0.  E.  548. 

19.  A  reference  of  issues  upon  sham  pleas  is  erroneous, 
but  if  the  reference  embrace  an  issue  on  a  good  plea  which 
may  be  referred,  it  will  be  sustained  as  to  that  while  it  is  re- 
versed as  to  others.     Flack  v.  Dawson,  69  N.  0.  E.  42. 

20.  A  reference  made  by  the  court  to  take  an  account  to 
be  used  in  an  action  pending  before  it,  is  not  a  reference  as 
can  be  ended  at  the  election  of  either  party  before  it,  upon 
the  notice  prescribed  in  the  Code  of  Civil  Procedure,  sec. 
247.     69  Green  v.  Green,  N.  0.  E.  294. 

21.  There  are  three  mode  of  trial  provided  for  by  the 
Code:  1.  Trial  by  jury;  2.  Trial  by  the  Court;  3.  Trial  by 
referees.  If  a  reference  is  made  by  consent,  it  is  a  mode  of 
trial,  selected  by  the  parties,  and  is  a  waiver  of  the  right  of 
trial  by  a  jury.  If  no  exceptions  be  taken  before  the  re- 
ferees, and  their  report  go  up  without  exceptions,  and  either 
party  desire  to  except,  then  and  there  in  term  time,  he  must 
be  permitted  to  do  so.  And  then  his  Honor  must  pass  upon 
them,  as  if  they  had  been  taken  before  the  referees.  Green 
v.  Castlebury,  70  N.  C.  E.  20. 

22.  Where  a  report  is  made  under  a  compulsory  refer- 
ence, and  exceptions  are  filed,  and  issues  made  by  these  ex- 
ceptions, either  party  has  the  right  to  have  the  issues  tried 
by  a  jury  ;  because,  not  having  waived  a  trial  by  jury,  as  is 
done  when  the  reference  is  by  consent,  the  party  has  a  con- 
stitutional right  to  a  trial  by  jury.     Ibid. 

23.  Section  246,  C.  C.  P.,  construed,  and  the  practice 
under  the  same  settled  and  fully  explained.     Ibid. 

24  In  a  case  of  a  compulsory  reference,  either  party,  may 
at  some  stage  of  the  proceedings,  to  be  determined  by  the 
court,  demand  a  trial  by  the  jury  of  the  issue  arising  in  the 
report  of  the  reference.  But  if  the  reference  has  been  made 
by  consent,  the  parties  waive  their  light  to  have  such  issues 
tried  by  a  jury,  and  cannot  demand  it,  after  having  by  such 
waiver  renounced  it.     Armfiekl  v.  Brown,  70  N.  C.  E.  27. 

25.  The  Act  of  1866-67,  chap.  59,  sec.  2,  is  repealed  by 
the  Act  of  1868-'69,  and  by  chap.  121,  Bat.  Rev.,  so  that  a 
jury  trial  upon  certain  issues  cannot  under  the  provisions  of 
that  Act  be  now  demauded.  Lippard  v.  Roseman,  70  N.  0. 
E.  34. 


422  EEFEBENCE  UNDEE  THE  0.  0.  P. 

26.  Parties  are  entitled  to  a  jury  trial,  in  all  cases  when 
they  have  not  waived  their  right  to  demand  it,  as  they  have 
in  a  reference  by  consent.     Ibid. 

27.  An  order  of  court,  sending  back  a  report  to  a  com- 
misioner  or  referee,  is  sufficient  notice  to  the  party  except- 
ing to  such  report,  of  its  recommitment.  Herring  v.  Mur- 
j)hy,  70  K  G.  E.  164. 

28.  A  commissioner  in  applying  the  scale  of  depreciation 
to  payments  and  receipts,  applied  the  same  at  the  date  of 
several  payments  were  made  and  the  receipts  given  ;  held,  to 
"be  proper  and  no  ground  of  exception,  in  the  absence  of  proof 
that  the  party  kept  on  hand  the  identical  money  received. 
Ibid. 

29.  A  commissioner  reports  that  the  evidence  upon  which 
he  stated  the  account,  ''was  the  reports  ot  the  defendant  as 
guardian  to  the  court,  one  voucher  for  defendant,  (which  is 
allowed,)  aud  defendant's  affidavit :"  held,  that  was  a  suffi- 
cient statement  of  the  evidence  to  justify  a  confirmation  of 
the  report.     Ibid. 

30.  The  entries  on  the  record,  that  certain  exceptions 
wTere  to  be  "  passed  upon  by  the  court  as  of  this  term,  fol- 
lowed by  the  judgment  of  the  court  are  conclusive  of  the 
waiver  of  a  jiny  trial  by  the  parties  and  cannot  be  impeached. 
Maxwell  v.  Maxwell,  70  X.  0.  E.  267. 

31.  Exceptions  to  the  report  of  a  referee,  that  he  adopted 
a  former  settlement  as  the  foundation  of  his  report ;  that  he 
stated  no  evidence  upon  which  he  found  the  facts  reported; 
that  he  filed  no  vouchers  nor  receipts,  nor  did  he  refer  to 
any  authorizing  the  disbursements  reported ;  and  that  he  did 
not  state  when  certain  judgments  were  obtained,  are  all  well 
taken,  and  the  report  was  properly  set  aside.  Wilson  v. 
Abrams,  70  N.  C  E.  324. 

32.  When  the  Judge  below  does  not  fiucl  the  facts  upon 
wdiich  he  overruled  the  defendant's  exceptions,  and  the  de- 
fendant not  having  requested  him  to  find  such  facts,  this 
court  will  remand  the  case  that  the  facts  may  be  found  either 
by  his  Honor,  or  in  a  case  under  the  Code.  Froneberger  v. 
Lewis,  70  N.  0.  E.  456. 

See  (Arbitration  and  Award — Construction  of  awards  and 
remedy  thereon,  3,  4,  5.) 


REGISTRATION— RELEASE.  423 


REGISTRATION. 

1.  Between  1860  and  1865,  there  was  no  period  when  a 
deed  made  in  1860  could  not  have  been  registered.  Isler  v. 
Foy,  66  N.  C.  R.  547. 

2.  Where,  in  an  action  of  ejectment,  the  plaintiff's  lessor 
claimed  title  under  a  deed  which  was  in  the  possession  of  the 
defendant,  who  asserted  a  right  to  it  by  virtue  of  an  endorse- 
ment upon  it :  held,  that  the  Court  had  the  power  to  order 
the  production  of  the  deed,  for  inspection,  or  other  legitimate 
purposes,  but  not  to  order  the  registration  of  the  deed,  before 
the  question  of  the  right  of  the  defendant  to  some  enquiry  by 
virtue  of  endorsement  was  tried  and  decided  against  him. 
Linker  v.  Benson,  67  K  0.  R.  150. 

3.  It  seems,  that  a  Probate  Judge  has  no  means  of  know- 
ing whether  a  deed  presented  for  registration  is  rightfully  in 
the  possession  of  one  offering  it  for  probate  ;  and  a  Judge  of 
a  court  of  law  has  no  power  to  cancel  a  registration  once 
made,  but  must  give  it  its  legal  effect.     Ibid. 

See  (Indians,  2,  3.) 


RELEASE. 

1.  When  receipts  are  given  for  specific  things,  they  do 
not  operate  as  a  release  of  any  right,  though  under  seal,  but 
must  be  confined  to  the  subjects  of  such  receipts.  Morrison 
v.  White,  67  N.  0.  R.  253. 

2.  A,  the  holder  of  a  promissory  note  given  to  H,  and 
indorsed  by  B  and  others,  gave  B  a  receipt,  not  under  seal, 
for  $23.90,  and  stating  therein,  that  it  was  for  "his  (B's) 
part  of  a  note  I  hold  on  H  :"  held,  that  such  receipt  was  no 
release  to  B  from  his  liability  to  pay  the  balance  of  the  note 
nor  did  it  operate  to  release  any  other  endorser  from  such 
liability.     Carrier  v.  Jones,  et  al.,  68  N.  C.  R.  127. 

3.  It  is  error  in  the  Judge  below  not  to  instruct  the  jury 
that  a  receipt,  produced  as  evidence  and  relied  upon  by  the 
defendat  to  whom  it  was  given,  to  operate  as  a  discharge  of 
him  from  all  further  liability,  was  not  such  a  release,  nor  did 
it  free  the  defendant  from  the  payment  of  whatever  balance 
ot  the  debt  remained  unpaid.     Ibid,  130. 

See  (Covenant,  1,  2,  3,  4) 


424     EELIGIOUS,  &c— EEMOVAL,  &o  —  BENT. 

RELIGIOUS  CONGREGATION. 
See  (Indictment — When  an  indictment  will  lie  or  not.) 


REMOVAL  OF  CAUSES  TO  THE  FED- 
ERAL COURTS. 

1.  "Where  a  suit  was  brought  prior  to  the  adoption  of  the 
0.  C.  P.,  by  a  citizen  of  another  State  in  the  Court  of  Equity 
of  one  of  the  counties  of  this  State  against  a  citizen  of  this 
State,  and  at  a  term  of  the  Superior  Court  of  the  county  af- 
ter the  adoption  of  the  0.  C.  P.,  a  motion  was  made  to  refer 
the  issues  in  the  cause  to  a  referee,  which  was  ordered,  and 
the  defendant  appealed  to  the  Supreme  Court,  where  the  or- 
der was  held  to  be  erroneous,  and  issues  were  directed  to  be 
made  up  to  be  tried  in  the  Court  below,  and  the  cause  was 
retained  in  the  Supreme  Court  until  the  issues  should  be 
tried:  it  was  held,  that  there  was  uot  a  final  hearing  on  trial 
of  the  suit  so  as  to  prevent  its  being  removed  at  the  instance 
and  upon  the  affidavit  of  the  plaintiff  to  the  Circuit  Court  of 
the  United  States  for  the  District  of  North  Carolina,  under 
the  act  of  Congress  of  March  2d,  1867,  which  provides  that  a, 
non-resident  party  in  a  State  Court  shall  be  entitled  to  re- 
move it,  on  making  proper  application,  "  at  any  time  before 
the  final  hearing  or  trial  of  the  suit."  Douglas  v.  Caldwell 
65  N.  C.  R.  248. 

2.  Where,  in  an  action  pending  in  a  Court  of  this  State 
there  were  several  plaintiffs,  one  of  whom  was  a  citizen  of 
North  Carolina  and  the  others  were  non-residents  of  the 
State,  the  defendant  being  also  a  non-resident :  held,  not  to  be 
a  proper  case  for  removal  to  the  Circuit  Court  of  the  United 
States,  upon  petition,  under  the  act  of  Congress  of  March  2, 
1867,  there  being  no  controversy  between  a  citizen  of  this 
State  and  a  citizen  of  another  State.  Bryant  v.  Scott,  67  N. 
C.  E.  391. 


RENT. 

1.     The  doctrine  that  rent  follows  the  reversion  applies  in 
favor  of  devisees  of  the  reversion,  as  well  where  it  is  directed 


KENT.— EEPLEVIN.  425 

to  be  sold  and  the  proceeds  divided  amongst  them,  as  where 
it  is  given  specifically.     Lewis  v.  WilMns,  Phil.  Eq.  E.  303. 

2.  Where  there  is  a  lease  for  years,  aud  before  the  end  of 
the  term,  the  interest  of  the  lessor  in  the  land  is  conveyed 
to  a  third  person,  or  is  sold  under  execution  and  purchased 
by  such  person,  the  rent  reserved,  which  is  not  due  at  the 
time  of  the  conveyance,  or  sale  and  sheriff's  deed,  passes 
with  the  reversion  to  the  purchaser,  and  cannot,  therefore, 
be  subjected  afterwards  to  the  debts  of  the  lessor.  Korne- 
gay  v.  Collier,  65  N.  0.  E.  69. 

3.  The  doctrine  of  the  different  kinds  of  rents  in  England, 
and  of  rent  in  this  State  discussed  and  explained.    Jbicl. 

4.  Where  A  made  a  lease  for  a  term  of  years,  and  during 
the  existence  thereof  he  conveys  the  land  by  deed  to  B,  the 
latter  can  recover  for  the  rent  which  had  accrued  after  the 
title  to  the  land  passed  to  him.  Ballard  v.  Thomason,  65 
N.  0.  E.  436. 

See  (Mortgage,  5,  6.)     (Vendor  and  Purchaser,  4,  5.) 


REPLEVIN. 

1.  A  judgment  in  an  action  of  replevin,  brought  under 
Eev.  Code,  ch.  98,  for  the  penalty  of  the  bond  given  by  the 
defendant  according  to  the  provisions  of  sec  4,  without  a  pre- 
vious judgment  against  the  defendant,  as  at  common  law,  is 
erroneous.     Scott  v.  Elliott,  63  K  0.  E.  215. 

2.  In  such  case  the  judgment  should  be,  that  the  plaintiff 
recover  the  tiling,  and  in  case  it  cannot  be  had,  then  the  value 
assessed;  and  also  damages  for  the  caption  and  detention,  with 
his  costs;  and,  superadded  thereto,  a  judgment  against  the 
defendant  and  his  sureties,  for  the  penalty  of  the  bond,  to  be 
discharged  by  performing  the  former  judgment.     Ibid. 

3.  The  value  should  be  assessed  as  at  the  time  of  the 
trial,  and  not  at  that  of  the  caption.     Ibid. 

4.  It  is  erroneous  to  assume  that  six  yer  cent,  is  the 
proper  measure  of  damages  in  such  case ;  it  might  be  more, 
or  less.     Ibid. 

5.  Semble,  that  the  judgment  in  such  cases  should  not 
include  a  sheriff  who  has  been  fixed  as  special  bail  of  the  de- 
fendant, but  that  he  is  to  be  reached  by  sci  fa.,  and  entitled 
to  surrender  his  principal  in  discharge  of  his  liability.     Ibid. 

6.  The  provision  in  the  act,  that  replevin  may  be  main- 
tained against  persons  in  possession,  wherever  trover  or  de~ 


426        EEPLEVIN— EETAILEES,  &c— EIOT. 

tinue  ivill  lie,  is  not  universal,  but  sub  modo  only,  reference 
being  bad  to  tbe  different  natures  of  tbe  acts  spoken  of.   Ibid. 

7.  Where  tbe  defendant  in  a  writ  of  replevin  was  not  in 
possession  of  tbe  tbe  tbing  sued  for  at  tbe  time  tbe  writ  was 
issued,  and  refused  to  give  bond,  no  recovery  can  be  bad 
against  bim.     Myers  v.  Oredle,  63  N".  0.  E.  504. 

8.  Tbird  persons,  wbo  after  tbe  issuing  of  a  writ  of  re- 
plevin come  forward  and  give  tbe  bond  and  receive  possession 
of  tbe  tbing  sued  for,  from  the  plaintiff,  are  not  liable  to  a 
recovery  in  such  action.    Ibid. 

See  (Trover,  1.) 


RETAILERS  OF  SPIRITUOS   LIQUOSR. 

1.  In  an  indictment,  under  the  act  of  1868-'9,  chap.  213, 
for  selling  spirituous  liquors  within  three  miles  of  the  Wes- 
tern North  Carolina  Eailroad,  during  the  period  of  its  con- 
struction, "  unless  licensed  by  tbe  State,"  it  is  a  complete  de- 
fence to  show  a  license  granted  by  the  county  commissioners 
of  the  county  in  which  the  selling  takes  place,  as  such  com- 
missioners are  the  agents  of  the  State  for  that  purpose. 
State  v.  Dobson,  65  N.  0.  R.  346. 

2.  Two  persons  may  be  charged  in  the  same  bill  of  in- 
dictment with  retailing  contrary  to  the  statute,  and  one  of 
them  may  be  convicted  and  the  other  acquitted.  State  v. 
Simmons,  66  N.  0.  E.  622. 

3.  When  one  contracts  to  sell  a  gallon  of  spirituous 
liquor,  and  a  portion,  viz :  less  than  a  quart,  is  delivered  at 
tbe  time  of  the  contract  of  sale,  and  afterwards  the  money  is 
paid  and  three-quarters  delivered,  and  subsequently  the 
remainder  of  the  gallon ;  held,  that  this  is  not  a  violation  of 
tbe  statute,  unless  it  was  an  artifice  to  evade  the  law,  and 
such  intent  was  a  question  of  fact,  which  ought  to  have  been 
submitted  to  the  jury.     Ibid. 


RIOT. 


It  is  not  necessary  to  constitute  a  riot,  that  the  facts 
charged  should  amount  to  a  distinct  and  substantive  indicta- 
ble offence ;  it  is  sufficient,  if  such  facts  shall  constitute  an 
attempt  to  commit  an  act  of  violence,  which,  if  completed, 
would  be  an  indictable  offence.  State  v.  York,  70  N.  0.  E.  66. 


ROAD.  427 


ROAD. 


1.  It  is  not  competent  for  a  Superior  Court  to  grant  an 
injunction  against  an  order  by  county  commissioners  within 
the  sphere  of  their  general  duties,  laying  out  a  public  road; 
nor  can  such  court,  otherwise  than  under  an  appeal  from 
such  order,  rescind  it.  McArtliur  v.  McJSacMn,  64  N.  C.  R. 
454. 

2.  If  a  road  be  dedicated  by  the  owner  of  the  soil  to  the 
use  of  the  public,  and  be  used  by  them  under  such  dedica- 
tion, it  becomes  a  public  road  immediately  ;  it  is  only  for  the 
lack  of  other  evidence  of  dedication,  that  the  lapse  of  twenty 
years  is  resorted  to.     Crump  v.  Mims,  64  1ST.  C.  R.  767. 

3.  Where  the  dedication  of  a  public  road  is  once  estab- 
lished, either  by  the  lapse  of  time  or  otherwise,  such  obstruc- 
tion or  disuse  as  will  afterwards  defeat  the  dedication,  must 
continue  for  twenty  years.     Ibid. 

4.  A  public  road  over  a  ford  is  not  done  away  with  by 
the  building  at  the  same  passage,  a  bridge  which  affords  the 
public  a  more  acceptable  transit,  provided  that  the  ford  is 
used  when  the  bridge  is  out  of  repair,  or  down;  and  this, 
even  where  the  owner  of  the  adjacent  lands  erects  a  fence 
across  the  approaches  having  a  slip  gap  in  it  to  the  road, 
which  is  used  by  the  public  whenever  they  have  occasion  to 
pass.     Ibid. 

5.  The  raising  of  the  water  at  the  ford  by  a  clam  of  a 
navigation  company  chartered  by  the  State,  so  as  to  render 
it  unfordable,  only  suspends  the  use  of  the  franchise,  and 
upon  the  destruction  of  the  dam  enjoyment  of  the  franchise 
is  restored.    Ibid. 

6.  When  the  proprietor  of  lands,  who,  for  the  purpose  of 
draining  the  same,  shall  construct  a  ditch,  drain  or  canal 
across  a  public  road,  it  shall  be  the  duty  of  the  said  proprie- 
tor to  build  a  bridge  over  said  ditch,  canal,  &c,  and  keep 
the  same  in  repair.  Rev.  Code,  chap.  101,  sec.  24.  Nobles 
v.  Langly,  G6  N.  C.  R.  287. 

7.  Such  duty  is  not  incumbent  upon  the  overseer  of  a 
public  road;  therefore  when  a  civil  action  was  brought 
against  such  overseer  to  recover  damages  alleged  to  have 
been  incurred  in  consequence  of  his  negligently  permitting  a 
bridge  over  a  canal  to  become  unsafe  and  in  bad  condition  ; 
held,  that  it  was  competent  for  him  to  show  that  the  canal 
had  been  dug  across  the  public  road  by  the  proprietor  of  the 
land  adjacent  thereto,  and  for  the  purpose  of  draining  the 
same,  and  that  a  bridge  had  been  built  over  the  canal  by  the 


428  ROAD.— ROBBERY. 

proprietor  of  the  land,  and  had  been  kept  up  by  him  for  sev- 
eral years.    Ibid. 

8  It  is  a  settled  principle  that  when  a  thing  is  done  by 
a  tribunal,  having  jurisdiction  of  the  subject  matter,  its  ac- 
tion cannot  be  impeached  collaterally,  for  any  irregularity  or 
error  in  the  proceeding,  and  must  be  taken  as  valid  de  facto, 
if  not,  dejure,  until  it  be  set  aside  or  reversed  by  some  direct 
proceeding  for  that  purpose  :  therefore,  when  a  road  laid  off 
by  commissioners  under  order  of  township  board  of  trustees,, 
and  an  overseer  was  appointed  over  it,  it  ivas  held,  on  an  in- 
indictment  for  obstructing  it,  to  be  no  defence,  that  no  notice 
had  been  given  to  some  of  the  persons,  over  whose  land  it 
passed.     State  v.  Davis,  68  K  0.  R.  297. 

9.  Section  hands  employed  on  our  Railroads  at  regular 
wages,  are  not  thereby  excused  from  working  on  the  public 
highways  of  the  country.     State  v.  Cauble,  70  N.  0.  R.  62. 

See  (Forcible  Trespass,  5,  6) 


ROBBERY. 

1.  An  ordinary  rail  road  is  not  a  public  highway  within 
the  meaning  of  the  Revised  Code,  ch.  34,  sec.  2,  punishing 
with  death  robbery  in  or  near  a  public  highway.  State  v. 
Johnson,  Phil.  L.  R.  140. 

2.  The  distinction  between  robbery  and  forcible  trespass 
is,  that  in  the,  former  a  felonious  intention  exists,  and  in  the 
latter  it  does  not.     State  v.  Sowls,  Phil.  L.  R.  151. 

3.  The  question  of  felonious  intention,  is  one  for  the  jury, 
acting  under  such  instructions  from  the  court  as  each  case- 
may  require.     Ibid. 

4.  If,  in  March,  1865,  one,  who  bona  fide  thought  he  was 
acting  under  the  orders  of  a  Captain  of  the  Home  Guard, 
went  to  a  dwelling-house,  and  forcibly  possessed  himself  of  a 
sword,  not  for  the  purpose  of  appropriating  it,  but  solely  to 
disarm  the  prosecutor :  held,  that  it  would  not  have  been 
robbery.     Ibid. 

5.  By  Pearson,  C  J.  Forcible  trespass  is  the  taking  of 
the  personal  property  of  another  by  force;  robbery,  the  fraud- 
ulent taking  of  the  personal  property  of  another  by  force.  Ibid. 

6.  A  prominent  feature  in  that  Felonious  intent  which 
distinguishes  robbery  or  stealing  from  forcible  trespass,  is,  an 
intent  to  evade  the  laiv,  as,  ex.  gr.  by  concealing  from  the  ow- 
ner of  the  thing  taken,  the  person  ivho  took  it.  i.  e.,  the  per- 


BOBBERY.— ROSIK— EULES  OF  PRACTICE.  429 

sou  who  might  be  sued,  or,  might  he  indicted;  such  are  the 
familiar  instances  of  taking  goods,  &c,  by  persons  in  masks, 
or,  or  ivith  faces  Wacked,  or,  on  the  highway.  State  v.  Deal, 
64  NT.  C.  R.  270. 

7.  Artifice  in  getting  possession  of  the  thing,  is  to  be  distin- 
guished from  artifice  in  concealing  the  fact  that  the  taker  has 
it  in  his  possession;  It  is  the  latter  that  shows  a  felonious  in- 
tent.   Ibid. 

8.  Cases  in  which  persons  concealed  "  shawls,"  &c,  which 
they  had  previously  found,  are  excepted  from  the  general 
rule,  because  of  the  temptation  to  which  they  were  subject  by 
circumstances  rarely  occurring.     Ibid. 

9.  When  the  maker  of  a  note  having  complained  of  the 
manner  in  which  he  had  been  treated  in  the  transaction  in 
which  he  had  given  it,  went  to  the  holder,  and  after  propo- 
sing to  pay  it  in  a  certain  way,  which  was  refused,  asked  to 
see  it,  upon  one  pretext  or  another,  and  upon  having  it  deliv- 
ered to  him  by  the  holder,  kept  possession  of  it,  saying,  ''you 
wont  get  it  again ;"  and  upon  a  struggle  ensuing,  snatched 
up  an  axe,  retreated  to  his  horse,  and  then  rode  off,  calling 
out,  "  Tom  (the  holder's  son,  and  a  surety,  to  the  note)  sent 
me  word  to  get  this  note  as  I  could,"  held,  to  be  no  case  of 
either  robbery  or  larceny.     Ibid. 


ROSIN- 

The  penalty  for  selling  rosin  in  Wilraiugton  without  having 
it  weighed,  given  by  act  of  19th  March  1869,  is  not  incurred 
where  the  rosin  when  sold  was  in  transitu  from  Wilmington 
to  New  York,  although  the  parties  to  the  sale  were  both  at 
the  time  in  Wilmington.  Atkinson  v.  Williams,  63  N.  C.  R. 
592. 


RULES  OF  PRACTICE. 

ADOPTED   AT   JUNE   TERM,    1868. 

1.  Appeals  will  be  docketed  for  their  proper  districts  in 
the  order  in  which  the  papers  are  filed  with  the  clerk. 

2.  The  clerk  will  docket  no  appeal  in  a  civil  action,  unless 
it  appears  that  the  appellant  has  filed  in  the  court  below  an 
undertaking  payable  to  the  appellee,  with  sufficient  surety, 


430    RULES  OF  PRACTICE— JUKE  TERM,  1869. 

and  in  a  sufficient  sum,  for  the  payment  of  all  costs  which 
may  be  adjudged  against  him  in  the  court;  or  has  made  a 
deposit  in  lieu  of  such  undertaking ;  or  unless,  by  leave  of 
this  court  here,  he  shall  file  such  an  undertaking,  or  make 
such  deposit  with  the  clerk  here.  This  rule  shall  apply, 
notwithstanding  an  appeal  bond  shall  have  been  waived  by 
the  appellee. 

3.  The  preceding  rule  shall  not  apply:  1st,  If  the  Judge 
shall  have  allowed  the  appellant  to  appeal  as  a  pauper,  or : 
2nd,  where  the  State  is  the  appellant  in  its  own  iuterest,  or> 
3rd,  where  an  officer  of  the  State  is  the  appellant,  in  his  ca- 
pacity as  such,  and  the  interest  of  the  State  alone  is  con- 
cerned. 

4.  Appeals  from  a  county  in  which  a  court  shall  be  held 
during  a  term  of  this  court,  il  filed  before  the  expiration  of 
the  time  assigned  to  the  district,  will  be  called  during  that 
week ;  if  not  filed  at  that  time,  they  will  be  called  at  the  end 
of  the  docket. 

5.  The  Judicial  Districts  shall  be  arranged  and  assigned 
in  the  following  order: 

1st  week,  First  and  Second  Districts. 
2nd  week,  Fourth  and  Fifth  Districts. 
3rd  week,  Third  and  Seventh  Districts. 
4th  week,  Eigth  and  Ninth  Districts. 
5th  week,  Tenth  and  Eleventh  Districts. 
6th  week,  Twelfth  and  Sixth  Districts. 

6.  The  cases  from  each  district  will  be  called  in  their 
proper  order ;  if  either  party  is  not  ready  the  case  may  be 
put  to  the  end  of  the  district,  by  consent  or  for  cause  shown, 
and  be  called  in  that  place ;  otherwise  the  first  call  is  per- 
emptory. In  like  manner,  by  consent  or  for  cause,  a  case 
may  be  put  to  the  end  of  the  docket,  or  continued.  If  no 
counsel  appear  for  either  party  at  the  first  call,  the  case  will 
be  put  to  the  end  of  the  district,  and  if  none  appear  at  the 
second  call,  it  will  be  continued. 

7.  Oases  not  prosecuted  for  two  terms,  will  be  dismissed 
at  the  costs  of  the  appellant,  unless  continued  for  cause,  with 
liberty,  however,  to  either  party  to  move  at  the  next  term 
to  re-instate  it ;  or  afterwards,  upon  sufficient  cause. 

8.  The  appellant  is  entitled  to  open  and  conclude  the 
argument. 

9.  When  an  appeal  shall  be  taken  after  the  commence- 
ment of  a  term  of  this  Court,  the  judgment  and  teste  of  the 
execution  shall  have  effect  from  the  time  of  the  filing  of  the 
appeal. 


EULES  OF  PEACTICE— JUNE  TEEM,  18G0.      431 


10.  The  clerk  of  this  Court  will  keep  a,  judgment  docket, 
with  an  alphabetical  index  of  the  names  of  the  defendants. 
On  this  docket  he  will  enter  a  brief  memorandum  of  every 
final  judgment  of  this  Court  affecting  the  right  to  real  prop- 
erty, and  of  every  judgment  requiring,  in  whole  or  in  part, 
the  payment  of  money  ;  stating  the  names  of  the  parties,  the 
term  of  the  judgment,  its  number  on  the  docket  of  the  term, 
and  if  for  the  payment  of  money,  the  amount  of  the  judg- 
ment ;  and  when  it  shall  appear  from  the  return  on  an  exe- 
cution or  from  an  order  for  an  entry  of  satisfaction  by  this 
Court  that  the  judgment  has  been  satisfied  in  whole  or  in  part, 
the  clerk,  at  the  request  of  any  person  interested  in  such  en- 
try, and  on  payment  of  the  lawful  fee,  shall  make  a  memoran- 
dum of  such  satisfaction,  whether  in  whole  or  in  part,  and 
refer  briefly  to  the  evidence  of  it. 

11.  Executions  from  this  Court  may  be  directed  to  the 
proper  officers  of  any  counties  in' the  State  ;  the  manner  of 
their  teste  is  prescribed  in  rule  9  preceding;  at  the  request 
of  the  party  in  whose  favor  execution  is,  it  may  be  returna- 
ble, on  any  specified  day  after  the  commencement  of  the 
term  of  this  Court  next  ensuing  its  teste.  In  the  absence  of 
such  request  executions  shall  be  made  returnable  on  the  first 
day  of  the  term  next  ensuing  their  teste;  and,  on  motion, 
for  special  cause,  execution  may  be  taken  out  during  the 
term. 

12.  The  court  will  not  regard  any  agreements  alleged  be- 
tween Attorneys  or  counsel,  unless  it  be  admitted,  or  shall  be 
in  writing  and  filed  in  this  court. 

13.  Memoranda  for  pleadings,  will  not  be  received  in  this 
court  as  pleadings,  even  by  consent  of  counsel,  but  will  be 
disregarded  as  frivolous  or  impertinent. 

14.  On  motion  of  either  party,  or,  in  a  gross  cause  of  its 
own  motion,  the  court  will  refer  it  to  the  clerk,  or  to  some 
member  of  the  bar,  to  report  whether  pleadings  in  a  cause 
are  scandalous  and  impertinent ;  and  if  they  be  found  so,  the 
court  will  order  the  scandal  or  impertinence  to  be  striken  out 
at  the  cost  of  the  party. 

15.  A  motion  to  dismiss  an  appeal  for  want  of  notice  of 
appeal,  can  only  be  made  at,  or  before  the  calling  of  the  case. 
On  the  hearing  of  such  motion,  the  notice  must  be  shown,  or 
be  shown  to  have  been  waived.  Notice  will  not  be  presumed 
merely  because  the  appeal  appears  to  have  been  taken  during 
a  term  of  the  court. 

16  Any  party,  within  two  terms  after  a  judgment  of  this 
court,  may  file  application  to  have  the  cause  reheard  upon 


432  BULES,  &c— JUNE  TEEM,  18G9  AND  1871. 


any  matter  of  law.  To  each  petition  shall  be  attached  a  cer- 
tificate, signed  by  two  counselors  of  this  court,  who  did  not 
appear  in  the  cause  at  its  first  hearing,  stating  their  opinion 
that  the  judgment  was  erroneous.  It  must  also  appear,  that 
the  judgment  has  been  performed,  or  that  its  performance 
has  been  properly  secured ;  or  some  sufficient  cause  must  be 
shown  for  dispensing  with  these  conditions.  Such  petition 
must  also  assign  the  errors  complained  of. 

17.  Appeals  from  judgments  rendered,  one  or  more  days 
before  the  commencement  of  a  term  of  this  court,  must  be 
filed  within  the  first  eight  days  of  the  term,  or  before  the 
calling  of  the  district  to  which  the  case  belongs,  otherwise 
they  will  be  continued  until  the  next  term. 

18.  All  judgments  recovered  during  any  term  of  the  Su- 
perior Court,  which  shall  be  docketed  during  the  term,  shall 
be  held,  and  deemed  to  be  docketed  in  the  first  day  of  the 
term. 

19.  If  any  plaintiff  shall  have  docketed  a  judgment  and 
failed  to  sue  out  execution  against  the  lands  of  the  defen- 
dant, any  other  plaintiff  who  has  docketed  a  judgment,  and 
shall  take  out  execution,  may  give  notice  of  his  execution  to 
creditors  having  prior  docketed  judgments,  which  shall  be 
served  at  least  twenty  days  before  the  clay  of  sale,  and  any 
creditor  so  notified,  who  shall  fail  to  sue  out  execution,  and 
put  it  into  the  hands  of  the  sheriff  before  the  day  of  sale,  shall 
lose  his  lien  on  the  lands  sold  :  provided,  that  this  rule  shall 
not  apply  to  any  creditor  who  cannot  take  out  execution. 

20.  In  all  cases  where  the  land  is  sold  under  execution, 
in  due  course  of  law,  the  purchaser  shall  be  deemed  to  have 
acquired,  by  power  of  the  sheriff's  deed,  all  of  the  estate  of 
the  defendant  in  the  execution,  and  all  of  the  rights  in  re- 
spect to  the  land  conveyed,  of  the  several  creditors  by  dock- 
eted judgments,  who  either  have  issued  executions,  or  who, 
having  been  notified,  shall  have  failed  to  issue  executions. 

21.  Writs  of  execution  issued  from  a  Superior  Court  shall 
not  be  tested  of  any  term;  they  shall  be  dated  the  day  of  their 
issue,  and  shall  state  where  the  judgment  was  docketed  in 
the  county  from  the  court  of  which  the  execution  issues. 

ADOPTED  AT  JUNE  TERM,  1871. 

1.  Clerks  shall  not  make  out  transcripts  of  judgment,  to 
be  docketed  in  another  county,  until  at  the  expiration  of  the 
term,  at  which  such  judgments  are  rendered.  All  judgments 
rendered  in  any  county  at  the  same  term  and  sent  to  another 


EULES  OF  PEACTIOE— JUNE  TERM,  1871.     433 

-county  to  be  docketed,  shall  be  equal  in  respect  to  lieu :  pro- 
vided they  be  docketed  iu  reasonable  time,  say  ten  days  af- 
ter the  end  of  the  term.  Adopted  January  Term,  1871. 
Johnson  v.  S  dbtrry,  Go  X.  C.  R  5. 

2.  All  judgments  rendered  by  a  Justice  of  the  Peace, 
upon  writs  of  summons,  returnable  on  the  same  day,  shall, 
when  docketed,  stand  on  the  same  footing  in  respect  to  lien; 
provided  such  judgments  be  docketed  within  reasonable  time, 
say  ten  days,  after  their  rendition.  Adopted  January  Term, 
1871.     Johnson  v.  Sedbury,  supra. 

3.  During  the  term  at  which  replication  is  filed, — as  soon 
thereafter  as  may  be,  the  attorney  of  plaintiff  will  draw  up 
in  writing,  such  issues  arisiug  upon  tiie  pleadings,  as  he 
deems  material  to  be  tried,  and  submit  the  statement  to 
the  attorney  of  the  defendant,  and  it  he  concurs,  the  state- 
ment signed  by  the  attorneys  will  be  filed  with  the  clerk. 
Otherwise  the  defendant's  attorney  will  make  a  like  state- 
ment, and  the  two  will  be  handed  to  the  Judge,  who  will 
"  settle  the  issue,"  and  file  them  with  the  clerk,  to  stand  for 
trial  at  the  next  term. 

4  Issues  shall  be  framed  in  concise  and  distinct  terms, 
.and  prolixity  and  confusion  shall  be  avoided,  by  not  having 
too  many  issues. 

5.  Before  the  argument  of  an  appeal,  if  the  court  consid- 
ers the  trial  of  one  or  more  other  issues,  necessary  for  the 
decision  of  the  case  upon  the  merits,  additional  issues  will 
be  made  up,  under  the  direction  of  the  court,  and  be  sent  to 
the  Superior  Court  for  trial,  and  the  case  be  retained. 

G.  Many  records  are  brought  before  this  court,  in  which 
the  proceedings  and  papers  are  mingled  in  a  confused  way, 
without  any  regard  to  the  order  of  time,  without  paging,  or 
marginal  reference,  by  which  a  knowledge  of  the  subject 
matter  may  be  facilitated.  Counsel  in  arguing  causes  are 
thus  embarrassed  and  delayed  in  finding  the  matter  they  are 
seeking  for,  and  the  court  is  put  to  much  unnecessary  labor, 
therefore  we  have  seen  fit  to  make  the  following  order : 

1st.  In  every  record  of  an  actiou  brought  to  this  court,  the 
proceedings  snail  be  set  forth  in  the  order  of  time  in  which 
they  occur,  and  the  several  processes,  orders,  &c,  shall  be 
arranged  to  follow  each  other  in  such  order  when  possible. 

2nd.  The  pages  of  the  record  shall  be  numbered,  and  there 
shall  be  written  on  the  margin  of  each,  a  brief  statement  of 
the  subject  matter,  opposite  to  such  subject  matter. 

3d.     On  some  paper  attached  to  the  record,  there  shall  be 
28 


7<? 


434    EULES,  &c—  JUNE,  1871.— 1872.— JAN'Y,  187 

an  index  to  the  record,  in  the  following,  or  some  equivalent 
form : 

Summons — date,  -----     page,  1. 

Complaint — first  cause  of  action,         -  "2. 

"        — second  cause  of  action,         -  "       3. 

Affidavit  for  attachment,  &c,  -         -  ''4. 

4th.  If  any  cause  shall  be  brought  on  for  argument,, 
and  the  above  rules  shall  not  have  been  complied  with,  the 
case  shall  be  put  to  the  end  of  the  district,  or  of  the  docket, 
or  continued  as  may  be  proper ;  and  it  will  be  referred  to  the 
clerk  of  this  court,  or  to  some  other  person,  to  put  the  record 
in  the  prescribed  condition,  for  which  an  allowance  of  five 
dollars  shall  be  made  to  him,  in  each  case,  to  be  paid  by  the 
appellant,  and  execution  may  immediately  issue  therefor. 

APPLICANTS  FOB,  LICENSE — ADOPTED  AT  JUNE  TERM,  1872. 

Applicants  for  license  are  expected  to  have  read  :  for  first 
course,  Blackstone's  Commentaries,  (2nd.  book  diligently,) 
Coke  or  Cruise's,  Fearne,  Saunders  on  uses,  aud  some  work 
on  Executors  aud  Administrators  ;  second  course,  3d.  Black- 
stone's  Commentaries,  Chitty  &  Stephen  on  Pleadings,. 
Adams'  Equity,  and  the   Code  of  Civil  Procedure. 

ADOPTED   AT   JANUARY   TERM,    1873. 

1st.  The  counsel  for  the  appellant  shall  have  the  right  to< 
address  the  court  for  not  over  two  hours  ;  which  shall  include 
his  opening  argument,  and  reply.  The  time  may  de  divided 
between  them  at  his  discretion. 

2nd.  The  counsel  for  the  appellee  shall  be  allowed  not  over 
one  hour. 

3rd.  The  time  occupied  in  reading  so  much  of  the  record 
as  may  be  necessary  shall  not  be  counted  under  the  above 
rules. 

4th.  The  time  for  argument  allowed  above  may  be  ex- 
tended by  the  Court  in  proper  cases  :  provided,  the  extension 
be  allowed  before  the  argument  begins. 

5th.  Any  number  of  counsel  will  be  heard  on  either  side 
within  the  limit  of  time  above  described,  but  it  is  required 
that  where  several  counsel  speak  each  shall  coufine  himself 
to  a  distinct  part  or  parts  of  the  argument,  so  as  to  avoid 
tedious  repetition. 

6th.  Every  appellant,  at  the  time  of  settling  the  case,  or 
if  there  be  no  case  within  ten  days  after  the  appeal,  shall 


KULES,  &c— JANUAKY,  1873.— JUNE,  1873.     435 

file  in  the  clerk's  office  his  exceptions  to  the  judgment  or 
proceedings  briefly  stated  and  numbered.  And  in  civil  (as 
distinct  from  criminal)  actions  no  other  exceptions  than  those 
so  filed  and  made  part  of  the  record  will  be  considered  in  this 
Court. 

7th.  ~No  case  will  be  heard  until  there  shall  be  put  in  the 
margin  of  the  record  brief  references  to  such  parts  of  the 
text  as  it  is  necessary  to  consider  in  a  decision  of  the  case. 

8th.  The  costs  of  copies  of  unnecessary  and  irrelevant 
testimony  or  of  other  irrelevant  matter,  not  needed  to  ex- 
plain the  exceptions,  shall  in  all  cases  be  charged  to  the  ap- 
pellant, unless  it  appears  expressly  that  they  were  sent  up 
by  the  appellee,  in  which  case  the  costs  shall  be  taxed  on 
him. 

9th.  In  every  case  the  appellant,  before  the  hearing,  shall 
file  with  the  clerk  one  or  more  written  or  printed  briefs,  in 
which  shall  be  set  forth  the  exceptions  taken  below.  Under 
each  shall  be  briefly  stated  so  much  of  the  pleadings,  case 
agreed,  or  other  finding  of  facts  as  will  make  it  intelligible. 
Also  if  several  acts  of  Assembly  are  relied  on,  a  citation  of 
them  by  date  and  chapter  ;  also  the  authorities  in  law  prin- 
cipally relied  on.  This,  however,  shall  not  forbid  the  citation, 
of  others  on  the  oral  argument.  If  a  statement  of  the  record 
or  any  part  of  it  be  necessary  to  an  understanding  of  the 
case  it  shall  be  made  briefly,  and  the  page  of  the  record  con- 
taining it  refered  to. 

10th.  If  the  above  brief  be  printed,  eight  copies  shall  be 
delivered  to  the  clerk,  viz  :  one  for  each  of  the  Justices,  one 
for  the  Clerk  to  file  with  the  record,  one  for  the  Keporter,, 
and  one  for  the  opposite  couusel. 

11th.  Whenever  printed  briefs  shall  be  filed,  and  the  mat- 
ter in  controversy  equals  or  exceeds  $300,  and  the  costs  of 
such  briefs  shall  be  taxed  in  the  costs  in  favor  of  the  party 
filing  them,  if  he  be  successful,  at  the  rate  of  five  cents  for 
each  printed  page  of  the  usual  size  of  the  reports  of  this 
Court, 

12th.  The  appellee  may,  in  like  manner,  file  such  briefs  and 
shall,  under  like  circumstances,  be  entitled  to  have  the  costs 
thereof  taxed  for  him. 

ADOrTED  AT  JUNE  TEEM,  1873. 

The  Supreme  Court,  by  virtue  of  its  power  to  exercise  a 
general  supervision  and  control  of  the  inferior  courts,  makes 
the  following  rules : 


436    RULES,  &c— JUNE  TERM,  1873.— SALES— I. 

1.  Every  clerk  of  a  Superior  Court,  aud  every  commis- 
sioner appointed  by  such  court,  who,  by  virtue  or  color  of  auy 
order,  judgment  or  decree  of  the  court  in  any  action  pending 
in  it,  has  received  or  shall  receive  auy  money,  or  security  tor 
money  to  be  kept  or  invested  for  the  benefit  of  any  party  to 
such  action,  or  of  auy  other  person,  shall,  at  the  term  of  such 
court,  held  on,  or  next  after  the  first  day  of  January  in  each 
year,  report  to  the  Judge  a  statement  of  said  fund,  setting 
forth  the  title  and  number  of  the  action,  aud  the  term  of  the 
court,  at  which  the  order  or  orders,  under  which  the  officer 
professes  to  act,  was  made ;  the  amount  and  character  of  the 
investment,  and  the  security  for  the  same,  and  his  opinion  as 
to  the  sufficiency  of  the  security.  In  every  report,  after  the 
first,  he  shall  set  forth  any  change  made  iu  the  amount  or 
character  of  the  investment  since  the  last  report,  and  every 
payment  made  to  auy  person  entitled  thereto. 

2.  The  reports  above  required,  shall  be  handed  by  the 
Clerk  of  the  Superior  Court  to  the  Register  of  Deeds,  and 
acknowledged  or  proved  by  said  clerk,  and  said  report  shall 
be  registered  at  the  cost  of  the  fund.  The  originals  shall  be 
returned,  after  registration,  to  the  Clerk  of  the  Superior 
Court,  and  tiled  among  the  papers  iu  the  cause. 

3.  The  above  rules  shall  apply  to  the  clerks  of  the  Supreme 
Court  and  to  auy  commissioner  appointed  by  it  to  receive 
and  invest  funds.  His  report  shall  be  registered  in  the  couuty 
from  which  the  appeal  was  taken  in  the  cause  iu  which  the 
order  is  made. 

4.  A  breach  of  the  above  rules  shall  be  punishable  as  a 
contempt  of  the  court  to  which  the  report  is  required  to  be 
made. 


SALES. 

I.    Judicial  sales.  |      II.     Sale  of  slaves. 

I.     JUDICIAL  SALES. 

1.  A  sale  of  land  under  a  petition  in  the  name  of  an  in- 
fant having  been  confirmed,  the  court  ordered  the  master 
to  collect  the  note  when  due,  and  upon  payment,  to  make 
title  ;  at  another  term,  the  court  ordered  the  master  to  pay 
the  note  over  to  the  infant's  guardian  ;  this  was  done,  and  the 
master  made  title  to  the  purchaser;  on  a  petition  by  the  in- 
fant after  coming  of  age,  praying  that  the  laud  might  still 


SALES— I.  437 

be  held  subject  to  tbe  payment  of  the  purchase  money :  held, 
that  the  deed  by  the  master  was  irregular  and  invalid,  and 
that  the  petitioner  was  entitled  to  the  relief  which  he  desired. 
Singletary  v.  Whitaker,  Phil.  Eq.  E.  77. 

2.  Any  court  which  orders  a  judicial  sale,  has  the  power 
to  make  a  decree  for  the  money  after  a  ten  days'  notice. 
Cotton,  ex  parte,  Phil.  Eq.  E.  79. 

3.  The  statutory  provision  to  that  effect  (Code,  ch.  41, 
sec.  129,)  is  constitutional,  and  as  regards  courts  of  equity, 
merely  substitutes  notice  and  execution  for  the  original  power 
of  proceeding  by  attachment.     1  bid. 

4.  Where  the  note  given  at  a  sale  was  given  to  a  former 
clerk  and  master :  held,  that  a  decree  in  the  name  of  the 
present  clerk  and  master  was  valid.     Ibid. 

5.  A  suit  upon  a  note  made  to  a  former  clerk  and  master 
by  his  name  and  office,  need  not  be  brought  iu  his  name.  It 
were  more  safe  to  bring  it  in  the  name  of  the  State.     Ibid. 

0.  Where  a  commissioner,  appointed  by  a  court  of  equity 
to  sell  land  "  for  cash,"  (in  conformity  with  a  representation 
that  it  would  be  best  to  sell  for  "  ready  money,")  received  in 
payment  Confederate  treasury  notes,  the  sale  was  set  aside. 
McNeill  v.  Shaw,  Phil.  Eq.  E.  91. 

7.  One  who  purchases  land  at  a  sale  by  a  clerk  and  mas- 
ter, made  under  the  petition  by  the  representatives  of  a  per- 
son bound  by  a  parol  agreement  to  hold  in  trust  for  another, 
cannot,  before  payment  of  the  purchase  money,  or  execution 
of  title,  claim  to  be  either  a  purchaser  for  valuable  considera- 
tion, or  a  purchaser  without  notice.  Colin  v.  Chapman, 
Phil.  Eq.  E,  92 

8.  Where  all  the  persons  who  have  an  interest  in  the 
land,  whether  vested,   contingent  or  executory,  are  in  esse, 
and  are  before  the  court,   the  court  may  make  an  order  of 
sale.     Houston  v.  Houston,  Phil  Eq.  E.  95. 

9.  Where  any  member  of  a  class  to  which  an  executory 
devise  is  limited,  are  in  esse,  a  court  of  equity  in  North  Caro- 
lina will,  upon  a  proper  case  being  made,  order  a  sale  of  the 
land  devised  :  otherwise,  where  no  such  members  are  in  esse. 
Dodcl,  ex  parte,  Phil.  Eq.  P.  97. 

10.  Where  land  had  been  conveyed  by  a  Clerk  and  Mas- 
ter under  an  order  of  Court  of  Equity,  in  pursuance  of  a  sale 
theretofore  made  for  partition  upon  an  application  by  tenants 
in  common,  and  the  purchaser  had  reconveyed  the  land  to  an- 
other: held,  that  the  tenants  in  common  could  not  impeach 
the  conveyance  by  the  Clerk  and  Master  (for  being  made 
without  a  payment  of  the  purchase  money) — by  the  medium 


438  SALES— I. 

of  an  action  of  ejectment ;  and  that  their  remedy  was  in  equity. 
Beard  v.  Ball,  63  N".  0.  E.  39.     • 

11.  Although  a  court  will  set  aside  a  sale  made  under  its 
order,  upon  its  being  reported,  or  otherwise  appearing,  that 
the  highest  bid  is  inadequate ;  yet,  it  is  not  according  to  the 
practice  in  such  cases,  to  accept  a  higher  hid  tendered  by  an- 
other party  since  the  sale.    Wood  v.  Parker,  63  N.  0.  E.  379 

12.  The  proper  order  is,  to  re-open  the  biddings.    Hid. 

13.  Whenever  the  Clerk  of  a  Court  is  appointed  to  make 
sales,  &c,  it  is  to  be  taken  that  he  is  appointed  in  his  official 
capacity,  unless  the  order  of  appointment  expressly  negatives 
the  idea ;  and  for  default  under  such  appointment  the  clerk 
and  his  sureties  are  liable  upon  his  official  bond.  McNeill  v. 
Morrison,  G3  K  C  E.  508. 

14.  A  civil  action  to  recover  the  amount  of  a  bond  given 
for  the  purchase  of  a  tract  of  laud  sold  by  the  Clerk  and  Mas- 
ter under  an  order  of  the  late  Court  of  Equity,  will  not  be 
sustained,  because  the  Superior  Court  has,  under  the  present 
system,  succeeded  to  the  jurisdiction  of  the  Court  of  Equity 
and  has  plenary  power,  by  an  order  iu  the  cause,  to  compel 
the  purchaser  to  pay  such  a  sum  as  the  Court  may,  under  the 
oircumstauces,  deem  right  and  proper.  Council  v.  Bivers, 
€5  K  C.  E.  54. 

15.  The  objection  that  another  action  cannot  be  sustain- 
ed, because  the  Court  can  give  the  desired  relief  by  orders  in 
ii  cause  still  pending,  though  not  taken  in  the  Superior  Court 
by  demurrer  or  otherwise,  may  be  taken  ore  tenus  in  the 
Supreme  Court,  or  the  Court  may  take  it  mero  motu  to  pre- 
vent multiplicity  of  suits  and  the  accumulation  of  costs,  but 
in  such  case  the  action  will  be  dismissed  without  costs.  Ibid. 

1G.  Where  the  laud  of  an  infant  was  sold  for  partition  in 
185G,  under  a  decree  of  the  Court  of  Equity,  and  the  Court 
decreed  "that  the  Master  proceed  to  collect  the  purchase 
money,  tax  the  costs  incurred,  and  pay  over  the  residue  to 
the  parties  entitled,  and  upon  the  payment  of  the  purchase 
money  the  Master  execute  title  to  the  purchaser:"  held,  that 
the  payment  of  the  principal  part  of  the  purchase  money,  and 
a  note  given  to  the  guardian  of  the  infant  for  the  residue,  was 
not  a  compliance'  with  the  decree  of  the  Court.  Walke  v. 
Moody,  G5  N.  C.  E.  599. 

17.  Iu  such  a  case  the  plaintiff  has  a  lien  upon  the  land 
for  the  payment  of  the  residue  of  the  purchase  money,  and 
is  entitled  to  a  decree  for  a  resale  of  the  land  for  the  payment 
thereof.     Ibid. 

18.  Where  a  petition  for  the  sale  of  land  was  filed  in  one 


SALES— I— II.  430 

of  the  late  courts  of  equity,  no  final  decree  having  been  ren- 
dered therein  at  the  adoption  of  the  Constitution,  the  clerk 
of  the  Superior  Court  has  no  jurisdiction,  and  the  Judge 
none  except  at  term  time,  to  hear  and  determine  a  petition 
filed  in  the  cause  praying  for  a  re-sale  of  the  property. 
Greene  v.  Moore,  (Hj  N.  C.  JR.  425. 

19.  It  is  clear  that  the  Court  may  appoint,  control  and 
remove  its  commissioners  to  sell  land.  Stone  v.  Latham,  GS 
X.  C.  R  421. 

20.  A  deed  from  a  clerk  and  master  in  equity  conveys 
the  legal  title,  and  its  validity  cannot  be  attacked  in  a  col- 
lateral way,  as  for  instance,  in  an  action  of  ejectment.  To 
avoid  such  a  deed  it  is  necessary  that  proceedings  in  the 
nature  of  a  bill  in  equity  should  be  instituted,  and  a  decree 
obtained  declaring  its  validity  or  invalidity.  Simmons  v. 
Hassell,  GS  N.  C  R.  213. 

II.     SALE  OF  SLAVES. 

1.  If,  at  a  sale  of  a  vested  remainder  in  slaves,  a  procla- 
mation is  made,  that  if  the  purchaser  did  not  get  the  slaves, 
the}'  were  not  to  be  paid  for,  it  is  competent  and  relevant  on 
a  trial  in  an  action  ou  the  note  given  by  the  purchaser,  for 
the  vendor  to  show  that  his  title  to  such  remainder  was  a 
good  one  at  the  time  of  the  sale  by  the  purchase  of  the  out- 
standing interest,  or  otherwise,  notwithstanding  that  the 
slaves  themselves  were  emancipated  before  the  life-estate  fell 
in.      Whiteside  v.  Williams,  GG  "NT.  C.  E  141. 

2.  At  such  a  sale,  (August,  1SG1,)  it  is  evident  that  the 
parties  did  not  contemplate,  nor  act  or  talk  with  reference  to 
such  result ;  and  this  is  clearly  manifest  by  the  terms  of  the 
bill  of  sale  thereat,  which  embraced  the  contract  between  the 
parties,  and  which  is  in  these  words  :  "  received  of  J.  O.  W, 
by  note,  11,020,  his  bid  for  the  interest  of  J.  H.  W.,  dec'd, 
in  two  negroes,  ***********  we  war- 
rant the  title  of  said  negroes,  as  to  the  interest  expressed,  un- 
less recovered  from  the  estate  of  J.  11  W,  by  31.  II.  W., 
who  forbid  the  interest  mentioned  to  be  sold,  and  in  ease  said 
recovery  is  made  by  the  said  M.  II.  YV.,  then  the  note  of  the 
said  J.  0.  W.,  shall  not  be  recoverable.     Ibid. 

3.  If  the  legal  title  to  such  remainder  was  in  the  intestate 
at  his  death,  it.  passed  by  the  sale  to  the  purchaser,  and  he 
is  bound  for  the  purchase  money.    Ihid. 

4.  The  sale  of  a  slave  in  September,  1864,  in  North  Car- 
olina, constituted  a  valuable  consideration  lor  any  promise 
made  to  pay  lor  the  same.  HarreU  v.  Watson,  G3  N.  C.  R.  454. 


440  SCALE  OF  DEPRECIATION. 


SCALE  OF  DEPRECIATION. 

1.  The  rule  of  applying  the  scale,  under  the  ordinance  of 
October  18th,  1865,  and  the  acts  of  18G6,  oh.  38  and  39,  is: 
Money  contracts  are  presumed  to  be  solvable  in  Confederate 
money,  and  the  value  thereof  must  be  estimated  by  the  jury, 
in  coin,  accordiDg  to  the  legislative  scale,  and  then  the  depre- 
ciation of  United  States  Treasury  notes  must  be  added  to 
the  amount  as  estimaied  in  coin  :  (This  division  applies 
onty  to  contracts  where  Confederate  money  was  the  conside- 
ration.) In  all  other  cases  of  contracts,  the  value  of  the 
property  or  other  consideration,  may  be  shown  in  evidence, 
and  the  jury  must  estimate  such  value  in  U.  S.  Treasury 
notes.     Robeson  v.  Brown,  63  N.  C.  R.  554. 

2.  A  bond  was  given  for  $1,000,  dated  Nov.  18th,  1862, 
and  payable  "  one  day  after  date,"  the  consideration  being  a 
tract  of  land  :  held,  to  be  competent  for  the  plaintiff  to  rebut 
the  'presumption  as  to  the  currency  in  which  it  was  solvable 
under  the  ordinance  of  1866,  by  proving  that  it  was  ex- 
pressly agreed  by  the  parties  at  the  time,  that  it  was  to  be 
paid  "  in  good  money  after  the  war,"  as  such  expression  re- 
ferred to  the  currency  in  which,  and  not  to  the  time  at  which 
it  was  payable,  and  was  equivalent  to,  ''in  money  good  after 
the  war."     Sowers  v.  Earnhart,  64  N.  0  R.  06. 

3.  A  bond  for  money  for  the  hire  of  a  slave  for  1865, 
given  January,  2nd,  1865,  is  subject  to  be  scaled  according  to 
the  value  of  the  hire  for  the  year  in  lawful  money,  and  not 
according  to  the  legislative  table  of  the  values  of  Confederate 
curreucy  (acts  of  1865-'66,  eh  39  )  Maxwell  v.  Hipp,  61  N. 
C.  E.  98. 

4.  The  presumption  under  the  ordinance  of  1865,  that  a 
note  given  for  purchases  at  an  administrator's  sale  in  March, 
1864,  payable  at  twelve  months,  is  solvable  in  money  of  the 
value  of  Confederate  currency,  is  not  rebutted  by  evidence 
that  at  such  sale  the  administrator  gave  notice  that  he  would 
receive  in  payment  only  such  currency  as  would  pay  the 
debts  of  his  intestate,  coupled  with  other  evidence  that  the 
creditors  would  not  receive  Confederate  currency,  and  that 
the  estate  was  largely  insolvent.  In  such  case  the  plaintiff 
is  entitled  to  recover  the  value  of  the  articles  sold.  Laivs  v. 
Bycroft,  64  K  C.  R.  100. 

5.  Where  a  bond  was  given  upon  the  1  st  of  January,  1863, 
for  the  hire  of  slaves  for  the  year  1863:  held,  that  the  plain- 
tiff had  a  right  to  show  to  the  jury  the  value  of  such  slaves 


SCALE  OF  DEPRECIATION.  441 

at  that  place  aud  for  that  year,  as  a  guide  to  them  in  making 
up  a  verdict.     Dancey  v.  Braswell,  64  N.  0-  R.  102. 

6.  In  an  action  upon  a  bond  in  the  usual  form,  given  at 
an  administrator's  sale  in  January,  1805,  proof  that  at  the 
sale  proclamation  was  made  that  "  Confederate  notes  will  not 
be  taken,"  rebuts  the  presumption  made  by  the  Ordinance  of 
1865  as  to  the  currency  in  which  notes,  &c,  are  solvable;  and 
the  fact  that  on  the  same  occasion,  before  sale  made,  the  ad- 
ministrator, upon  further  enquiry  by  the  bystanders,  added 
"that  if  he  had  to  collect  the  notes  he  would  collect  gold  and 
silver,  that  if  he  could  pay  the  notes  over  to  the  heirs,  &c, 
they  could  make  any  arrangement  they  were  willing  to,  as  to 
payment,"  is  immaterial.     Cherry  v.  Savage,  64  N.  C.  R.  103. 

7.  A  question  as  to  the  value  of  certain  cotton,  the  con- 
sideration of  a  note  given  at  an  administrator's  sale  in  Greene 
County  in  1863,  is  to  be  settled  with  reference  to  the  time 
and  place  of  its  sale  and  delivery ;  and  evidence  as  to  what  it 
was  worth  within  the  Federal  lines,  (whither  it  could  not  be 
transported  but  in  violation  of  law,)  or  as  to  what  it  was  sold 
for,  is  incompetent.     Moye  v.  Pope,  64  N".  C.  R.  543. 

8..  A  note  for  mouey,  dated  May  9th,  1863,  is  liable  to 
the  operation  of  the  scale,  notwithstanding  that  it  is  payable 
in  "good  bankable  currency.  Green  v.  Brown,  64  N.  C.  R.  553  .. 

9.  Where  a  note  was  given  in  1862,  in  consideration  of  the 
loan  of  Confederate  money,  and  in  1863  the  payee  endorsed 
it  to  the  plaintiff  in  payment  for  a  tract  of  land :  held,  in  a 
suit  against  the  payee  and  the  maker,  that  the  scale  to  be 
applied  was  the  value  of  Confederate  money  in  1862,  and  not 
that  of  the  land  afterwards  purchased  by  the  payee.  Sum- 
mers v.  McKay,  64  N.  C.  R.  555. 

10.  A  bond,  dated  April  3, 1865,  payable  at  twelve  months, 
"  in  current  money,"  is  presumed  to  be  subject  to  the  scale 
laws.     Howard  v.  Beatty,  64  N".  O.  R.  559. 

11.  In  a  case  where  land  had  been  sold  by  an  executor  du- 
ring 1S64,  no  money  having  been  paid  by  the  purchaser,  and 
subsequently  the  executor  repurchased  the  land  and  agreed 
to  pay  the  purchaser's  debt  on  account  of  it;  and  thereupon, 
a  year  after  the  purchase  (in  April  1865,)  he  agreed  with  one 
of  the  heirs  to  pay  her  one-half  of  her  share  in  Confederate 
money,  and  to  give  a  note  payable  as  above  for  the  other 
half:  held,  that  this  note  was  not  liable  to  be  scaled  by 
proving  the  value  of  the  land.     Ibid. 

12.  Also,  that  there  was  evidence  to  warrant  a  jury  that 
it  was  not  to  be  scaled  at  all,  but  that  the  court  erred  in  de- 
ciding itself  that  such  note  was  not  to  be  scaled.     Ibid. 


442  SCALE  OF  DEPEECIATIOK 

13.  The  word  "  or,"  in  a  bond  payable  to  "  Squire  Parker 
or  Thomas  Parker,"  construed  to  meau  '  and,"  from  evidence 
introduced  to  prove  the  consideration,  under  the  scale  law. 
Parker  v.  Carson,  64  K  0.  E.  563. 

14.  A  bond  given  in  1863,  in  consideration  of  the  sale  of 
laud,  although  payable  "  in  currency,"  is  to  be  scaled  by  refer- 
ence to  the  value  of  the  land,  and  not  to  the  Confederate 
money.     Ibid. 

15.  In  an  action  of  debt  upon  such  bond,  the  judgment 
was  for  "  $2,494.79,  of  which  sum  $1,902  00  is  principal :" 
held,  that  as  the  scale  law  applied,  there  was  no  error  in  such 
judgment.     Ibid. 

16.  A  judgment  rendered  in  1864,  upon  a  note  for  Con- 
federate money  lent  in  1862,  is  subject  to  the  same  scale  that 
the  note  was ;  and,  therefore,  where  a  surety  to  the  debt  paid 
off  the  judgment  iu  1867,  at  its  face  value:  held,  that  he 
could  not  recover  such  full  amount  from  the  principal,  not 
having  been  compelled  to  pay  it.  Alexander  v.  Mintels,  64 
N.  C  E.  634. 

17.  A  bond  had  been  given  in  1863,  for  the  price  of  a 
slave,  and  partial  payments  had  been  made  thereupon  in 
Confederate  money:  held,  that  in  order  to  ascertain  how 
much  is  now  due  thereupon  in  National  currency,  the  jury 
should  estimate  the  value  of  the  slave  when  purchased,  in 
gold,  and  deduct  therefrom  an  amount  which  bears  to  that 
value  the  same  proportion  which  the  payments  do  to  the 
sum  specified  in  the  bond ;  adding  to  the  remainder  the  de- 
preciation of  U.  S  Treasury  notes  at  the  time  of  the  verdict. 
Brown  v.  Foust,  64  N.  C.  E.  672. 

18.  Where  a  note  was  given  in  1862,  there  is  presumption 
that  it  was  given  for  a  loan  of  Confederate  money  ;  but  that 
presumption  is  not  conclusive.  The  facts  necessary  to  author- 
ize the  application  of  the  legislative  scale  are  matters  of  de- 
fence, and  must  be  pleaded  when  the  note  sued  on  does  not, 
prima  facie,  show  that  it  is  applicable,  and,  when  it  does  so 
show,  a  defendant  must  in  some  way  claim  the  application  of 
the  scale.     Ban'i  of  Charlotte  v.  Britton,  GG  N.  0.  E.  345. 

19.  A  note  given  in  October,  1863,  to  a  distributee,  upon 
settlemeut  of  an  estate,  for  au  amount  due  iu  good  mouey,  is 
not  subject  to  the  scale  of  depreciation.  McCombs  v.  Grif- 
fith, 67  N".  C.  E.  S3. 

20.  The  rule  that  au  endorser,  on  default  of  the  maker 
of  a  note,  becomes  liable  for  the  amouut  of  the  note,  is  not 
of  universal  application  to  notes  endorsed  during  the  late  war; 
but  the  contract  of  endorsement   in  such  cases  is  affected 


SCALE  OF  DEPRECIATION.  443 

foy  the  legislation  relating  to  the  scale  of  depreciation,  &c. 
Saunders  v.  Jar  man,  67  N.  C  11.  SO. 

21.  Where  a  note  for  $1,200,  given  in  September,  1803, 
for  property  worth  $3,000,  was  endorsed  shortly  thereafter 
by  the  payee,  in  consideration  of  the  property  of  the  value  of 
81,200,  and  since  the  war  the  endorsee  discharged  the  ma- 
ker, in  writing,  upon  payment  of  $310  ;  held,  that  the  effect 
•of  the  release  was  not  to  discharge  the  endorser,  but  he  is 
btill  liable  for  the  difference,  upon  an  implied  contract  in  the 
endorsement  that,  if  the  maker  failed  to  do  so,  he  would  pay 
the  endorser  the  value  of  what  he  received  for  the  note 
Ibid. 

22.  Where  a  note  was  given  in  1804,  for  money  borrow- 
ed, one-half  of  which  was  to  be  paid  "  two  years  after  the 
termination  of  this  war,  without  interest,  in  the  then  curren- 
cy," it  uas  held,  that  the  legislative  scale  did  not  apply,  and 
•that  half  the  sum  borrowed  was  payable  in  United  States 
currency  at  the  time  stipulated.  Williams  v.  Monroe,  67 
N.  C.  R.  133. 

23.  Iu  an  action  on  a  note  given  iu  1802,  for  the  purchase 
of  property,  the  statute  makes  the  value  of  the  property  the 
guide  for  the  verdict  of  the  jury,  and  it  is  competent  to  show 
what  estimate  was  put  upon  the  property  by  the  parties 
themselves,  at  the  time  of  the  sale.  Ogborn  v.  Teague,  07 
N.  O.  Ii.  355. 

24.  Where  a  note  was  giveu  iu  1872,  for  the  loan  of  Con- 
federate money,  and  afterwards,  in  1804,  the  obligor  tendered 
the  amount  due  in  Confederate  currency,  a  portion  of  which 
was  received,  and  a  new  note  given  for  the  remainder;  it  was 
held,  that  the  old  debt  must  be  regarded  as  paid,  and  the 
transaction  a  new  loan  and  the  scale  applied  as  of  that  date. 
{JoMe  v.  Hardie,  07  N.  C  R.  472. 

25.  In  a  suit  on  a  bond  given  in  Jan.  1804,  and  expressed 
to  be  for  value  received,  the  value  of  the  property  for  which 
the  bond  was  given  is  the  rule  to  be  applied  under  the  Aet 
of  1800,  chap.  38,  in  ascertaining  the  amount  to  be  recov- 
ered, and  this  is  not  varied  by  the  fact  that  the  parties  agreed 
at  the  time  when  the  bond  was  given  that  it  might  be  paid 
in  Confederate  money.  Nor  will  it  be  vailed  by  the  assignee 
in  bankruptcy  of  the  obligor  having  given  the  following  re- 
ceipt :  "  Received  of  M.  M.  $00,  on  account  of  a  note  held 
by  me  as  assignee  of  W.  J.  B.,  and  which  I  have  agreed  to 
settle  according  to  the1,  scale  as  adopted  by  law.  McBae  v. 
McNair,  0!)  N.  C.  R.  12. 

20.     Where,  under  a  parol  contract  for  the  purchase  of 


444     SCALE,  &c— SCHOOL,  &c— SET-OFF— I. 

land  in  January,  1862,  the  purchaser  took  possession,  and  in 
September  of  the  same  year  gave  his  note  for  the  purchase 
money  with  interest  from  the  preceding  2  anuary  :  It  was 
held,  that  in  a  suit  upon  the  note,  the  value  of  the  land  and 
not  the  value  of  Confederate  currency  according  to  the  leg- 
islative scale,  was  the  amount  which  the  plaintiff  was  entitled 
to  recover.     Bryan  v.  Harrison,  69  N.  0.  R.  151. 

27.  A  judgment  during  the  war  is  subject  to  the  legisla- 
tive scale  in  regard  to  Confederate  notes  to  be  applied  at  the- 
date  ot  the  contract,  or  the  time  of  the  breach  complained 
of     Stokes  v.  Smith,  65  X.  C  R.  352. 

28.  Verdict  that  the  "  plaintiff  is  entitled  to  the  amount 
of  the  judgment  taken  at  February  Term,  1865,  subject  to 
the  legislative  scale,"  and  his  Honor  had  charged  the  jury 
that  the  scale  was  to  be  applied  at  the  date  of  demand,  Au- 
gust, 1863 :  held,  that  the  judgment  was  to  be  scaled  as  of 
August,  1863,  and  his  Honor  ought  to  have  directed  the- 
clerk  to  aid  the  jury  in  the  calculation  necessary  for  the  ap- 
plication of  the  scale,  so  as  to  fix  the  amount  for  which  the 
judgment  should  be  rendered.     Ibid. 

See  (Confederate  Money,  37.)  (Pleading — Of  the  Verdict 
and  Judgment,  11.) 


SCHOOL    COMMITTEE. 

According  to  the  Constitution  and  the  Legislation  in  refer- 
ence to  Common  Schools,  the  school  committees  of  townships 
are  the  successors  of  the  school  committees  of  the  districts 
under  the  former  system,  and  are  entitled  to  all  the  property, 
and  subject  to  all  the  liabilities  of  their  predecessors.  School 
Commissioners,  &c,  v.  Kesler,  67  N.  C.  R.  443. 


SET-OFF. 

I.     At  law.  1      II.     in  equity. 

I.     AT  LAW. 

1.  An  account  due  by  the  plaintiff  to  one  of  several  de- 
fendants, is  not  competent  as  a  set-off  against  the  debt 
which  is  the  subject  matter  of  the  action.  Walton  v.  Mc- 
Kesson, 64  N".  C.  R.  154. 


SET-OFF— I.  445 

2.  Where  two  persons  bold  debts  against  each  other : — 
in  the  absence  of  any  understanding  between  them  that  the 
one  shall  be  applied  to  the  other —  there  is  no  lien  or  equity 
to  prevent  one  party  from  making  an  honest  assignment  of 
his  claim,  even  if  thereby  the  other  is  prevented  from  recov- 
ering his:  This  is  so,  even  in  cases  of  entire  mutuality  of 
debt.  Therefore,  where  there  was  not  such  entire  mutuality, 
and  A  had  assigned  his  note  without  endorsement  to  a  trus- 
tee to  pay  debts,  and  afterwards  judgments  were  obtained 
upon  both  notes :  held,  that  there  was  nothing,  in  the  rela- 
tion of  the  original  parties  at  the  time  of  assignment,  which 
gave  B  a  right  to  claim  that  the  trustees  took  A's  note  sub- 
ject to  set-off  by  his,  and  therefore,  a  motion  by  B,  to  have 
judgments  as  above  set-off  against  each  other,  was  denied. 
McConaughney  v.  Chambers,  04  N.  0.  E.  284. 

3.  A  note  transferred  by  successive  endorsements  to  dif- 
ferent persons,  is  subject  to  any  set-off  or  other  defence  which 
the  maker  had  against  any  one  of  the  assignees  at  the  date 
of  the  assignment,  or  before  notice  thereof  Harris  v.  Bur- 
well,  95  N.  G.  It.  584,  overruling  Need  v.  Lea,  64  JST.  C.  R. 
678. 

4.  When  a  person  is  indebted  to  the  State  of  North  Car- 
olina, and  is  sued  on  such  indebtedness,  he  cannot  offer  as  a 
set-off  or  counter  claim,  the  indebtedness  of  the  State  to  him 
arising  out  of  coupous  of  the  State  which  the  State  legally 
owes.     Battle  v.  Thompson,  05  N.  0.  R.  400. 

5.  A  set-off  is  allowed  to  avoid  circuity  of  actions,  hence 
it  cannot  be  entertained  in  this  case,  as  none  of  it  citizens 
can  bring  suit  against  the  State.     Ibid. 

6.  When  the  State  sues  one  of  its  citizens  who  has  a  claim 
against  the  State  which  falls  under  clause  1,  sec.  101,  0.  0. 
P.,  and  arises  out  of  the  contract,  or  is  connected  with  the 
subject  of  the  action,  it  may  be  that  the  defence  can  be  made 
against  the  State,  not  however  upon  the  principle  that  a  set- 
off or  couuter  claim  could  be  offered  by  the  defendant,  but 
upon  the  ground  that  the  claim  is  in  the  nature  of  a  payment 
or  credit.     Ibid. 

7.  Damages  to  realty  by  wilful  carelessness  cannot  be  set 
up  by  way  of  counter  claim  or  set-off  to  any  action  of  contract 
for  the  payment  of  money.  Street  v.  Bryan,  05  N.  0.  R. 
619. 

8.  Tn  an  action  which  was  commenced  before  the  0.  0 
P.,  a  defendant   cannot  claim,   by  way  of  set-off  or  recoupe- 
ment,  unliquidated  damages  arising  out  of  au  executory  con- 
contract.  Terrell  v.  Walker,  00  N.  C.  11.  244. 


446  SET-OFF— II. 

II.     IN  EQUITY. 

1.  Where  a  plaintiff,  or  one  of  several  plaintiffs  in  equity,. 
is  indebted  to  the  defendant,  and  is  insolvent,  the  claim  may 
be  set  off  without  strict  regard  to  mutuality.  If  such  debt 
be  payable  to  the  defendant,  the  set-off  may  be  effected  un- 
der a  petition;  if  not  payable  to  him  but  only  claimed  by  him, 
then  the  set-off  is  to  be  effected  under  a  bill.  March  v. 
Thomas,  03  N.  0.  E.  87. 

2.  Where  a  decree  had  been  obtained  for  sums  due  to 
several  plaintiffs  by  one  defendant,  and  at  the  next  term  the 
latter  made  an  affidavit  before  the  court,  setting  forth  cer- 
tain claims  upon  some  of  the  plaintiffs  payable  to  the  affiant, 
and  that  the  debtors  were  insolvent,  upon  which  a  corres- 
ponding rule  was  taken  and  served  upon  such  debtors :  heMt 
that  this  proceeding  was  equivalent  to  a  petition,  and  that 
the  debtors  should  be  required  to  answer  and  show  cause. 
Ibid. 

3.  Where  the  defendant  purchased  a  note  on  the  plaintiff 
during  the  week  of  the  trial  term  of  the  cause,  he  is  not  en- 
titled to  have  his  demand  applied  in  satisfaction  of  the  plain- 
tiff's claim.  Such  a  case  is  not  embraced  by  the  second 
clause  of  sec.  101,  C.  0.  P.,  because  it  was  not  ''existing  at  the 
commencement  of  the  action  ;"  nor  by  the  first  clause  of  said 
section,  as  it  is  not  "  connected  with  the  subject  of  the  ac- 
tion." Neither  has  the  defendant  any  right  to  an  equitable 
set-off  upon  the  mere  ground  of  the  insolvency  of  the  plain- 
tiff.    Ri'ldick  v.  Moore,  65  N.  0.  E  382. 

4.  To  authorize  an  equitable  set-off,  some  equitable 
grounds  must  be  shown  by  the  defendant  why  he  should  be 
protected  against  his  adversary's  demand.  The  mere  exist- 
ence of  cross  demands,  or  the  insolvency  of  the  plaintiff,  is 
not  sufficient.      Ibid. 

5.  When  a  negotiable  instrument  has  been  transferred,  it 
becomes  affected  in  the  hands  of  the  holder  by  any  equity 
the  obligor  may  have  against  such  holder,  and  no  subsequent 
transfer  will  defeat  that  equity  :  therefore,  where  A  is  in- 
debted to  B,  who  transfers  it  without  endorsement  to  0,  and 
at  the  time  of  such  transfer  C  owes  A  a  bond ;  after  holding  it 
some  time  0  returns  A's  bond  to  B.  In  an  action  by  B 
against  A  upon  the  bond  due  B:  hdd,  that  it  was  subject 
to  the  set-off  of  O's  bond  to  A,  though  B  may  have  had  no 
notice  of  the  indebtedness  of  0  to  A.  Martin  v.  Richard- 
son, 68  N.  0.  E.  255. 


SHERIFF— I. 


447 


SHERIFF. 


I.     Election  an<l  term  of  office. 
II.     Sales  by  sheriffs  and  purchasers 

thereat. 
III.     Sheriff's  return. 


IV.     Interpleader  for  money  in  sher- 
iff's hands. 
V.     Liability   of    sheriffs   and    their 
sureties. 

VI.     Commissions  and  fees. 


I,     ELECTION  AND  TEEM  OF  OFFICE. 

1.  The  terms  of  the  offices  of  the  sheriffs  chosen  at  the 
first  election  held  under  the  present  Constitution  are,  by 
force  of  Art.  4  and  Art.  2,  sec.  29,  extended  to  the  year  1872, 
after  which  time  such  terms  will  be  for  two  years  only.  Lof- 
tin  v.  Sowers,  65  N.  C.  11.  251. 

2.  An  action  by  the  Attorney  General  in  the  name  of  the 
people  of  the  State  and  of  the  person  who  claims  the  office 
of  Sheriff  is  by  force  of  the  360th  and  368th  sections  of  the 
C.  0.  P  ,  the  proper  mode  of  proceeding  against  the  person, 
who  is  alleged  to  be  usurping  it,  to  try  the  question  as  to 
which  of  the  parties  is  entitled  to  the  office.     Ibid* 

3.  The  disqualification  of  the  persons  who  hold  an  elec- 
tion for  sheriff  and  other  State  and  county  officers  will  not 
affect  the  validity  of  the  election.  Such  persons  are  de  facto 
officers,  whose  acts  are  valid  as  to  third  persons,  and  cannot 
be  collaterally  impeached.  Wilson  v.  Peterson,  69  N.  0.  E. 
113. 

4.  In  the  absence  of  fraud  it  is  not  material  to  the  valid- 
ity of  an  election  that  the  persons  appointed  judges  to  hold 
it  electioneered,  or  were  a,bsent  from  their  posts  at  different 
times  during  the  day.     Ibid 

5.  Under  the  act  of  1871-'72,  ch.  185,  sec  16,  (Battle's 
Eevisal,  ch.  52,  sec.  18,)  it  is  unlawful  for  a  voter  to  vote  for 
different  county  officers  on  separate  tickets ;  but  he  is  not 
bound  to  vote  for  more  of  the  candidates  for  the  different 
officers  than  he  chooses,  and  if  a  ticket  be  found  in  the  ballot 
box  containing  a  vote  for  only  one  of  the  proposed  officers,  it 
must  be  counted  for  him,  unless  it  can  be  shown  that  the 
person  who  voted  it  voted  also  for  other  candidates  on  an- 
other ticket,  in  which  latter  case  his  tickets  must  all  be 
thrown  out.     Ibid. 

6.  If  there  be  two  candidates  for  different  offices  having 
the  same  name,  and  a  ticket  be  found  in  the  ballot  box  hav- 
ing that  name  and  no  other  on  it,  it  may  be  proved  by  ex- 
trinsic evidence  for  which  of  the  candidates  it  was  given. 
1  bid. 


448  SHERIFF— II. 

II.     SALES  BY  SHERIFFS   AND  PURCHASERS  THEREAT. 

1.  A  purchaser  at  a  sheriff's  sale,  where  the  defendant  in 
the  execution  has  the  legal  title,  succeeds  only  to  the  rights 
of  the  defendant  in  the  execution,  and  is  affected  by  all  the 
equities  against  him.     Walker  v.  Moody,  65  N.  (J.  R.  599. 

2.  A  sheriff,  on  a  sale  by  him  under  execution,  can  de- 
mand cash  of  the  purchaser,  and  on  his  refusal  to  pay  it 
(even  though  such  purchaser,  as  an  execution  creditor,  is 
entitled  to  the  proceeds  of  sale,  less  the  cost,  and  offered  to 
pay  cash  for  the  amount  of  the  costs  and  entered  satisfaction 
for  the  residue)  may  immediately  resell.  Islerv,  Andrew's, 
66  N.  C.  R..  553. 

3.  Whether  a  sheriff  so  acting,  arbitrarily,  does  not  subject 
himself  to  an  action,  quere.     Ibid. 

4.  It  seems  that  on  a  rule  against  a  sheriff  at  the  instance 
of  such  bidder  to  show  cause  why  he  should  not  execute  a 
deed,  the  purchaser  at  a  re-sale  of  the  property  ought  to  be 
made  a  party.     Ibid. 

5.  And,  on  the  death  of  such  sheriff,  by  virtue  of  the 
provisions  of  the  Revised  Code,  ch.  37,  sec.  30,  the  rule 
should  be  served  on  his  sucessor.     1  bid. 

6.  Before  such  successor  can  be  required  to  convey  to 
such  first  bidder,  he  is  entitled  to  demand  clear  and  conclu- 
sive evidence  that  a  sale  was  made  by  the  predecessor,  and 
and  also  that  the  price  was  paid  to  him.     Ibid. 

7.  The  natural  evidence  thereof  is  the  return,  though  it 
seems  that  other  evidence  may  be  received.     1  bid. 

8.  In  the  absence  of  fraud,  the  irregularity  of  a  Marshal 
in  selling  land  under  execution  without  due  advertisement, 
although  it  might  expose  him  to  an  action  at  the  suit  of  the 
party  injured,  does  not  vitiate  the  sale.  Woodley  v.  Gil- 
liam, 67  K  0.  R.  237. 

9.  Where  executions,  issued  from  different  courts,  are 
placed  in  the  hands  of  different  officers,  are  under  these  ex- 
ecutions, giving  equal  power,  the  same  land  is  levied  upon, 
and  sold  by  each  of  those  officers :  held,  that  the  first  sale 
passes  the  title  of  the  defendant  in  the  execution.     Ibid. 

10.  The  priority  of  the  lien  of  executions,  as  between 
creditors,  is  of  no  moment  as  respects  the  title  of  a  pur- 
chaser. Such  matters  only  govern  the  application  of  the 
proceeds  of  the  sale.     Ibid. 

11.  A  plaintiff  having  indulged  one  execution  in  his  fa- 
vor, there  is  no  presumption  that  this  indulgence  extended 
to  subsequent  executions.     Isler  v.  3Ioore,  67  1ST.  0.  R.  74. 


SHERIFF— II.  449 

12.  Uuder  the  old  practice,  a  purchaser  at  a  sale  under  a 
junior  execution  acquired  a  good  title  as  against  a  subsequent 
purchaser  uuder  a  senior  execution.  A  fortiori  is  this  so,  as 
against  a  purchaser  under  execution  of  equal  teste.     Ibid. 

13.  Where  a  purchaser  ot  land  at  execution  sale  obtained 
-a  rule  upon  the  Sheriff,  who  sold  the  land  to  require  him  to 
execute  a  conveyance,  and  the  Sheriff  gave  as  a  reason  for 
his  refusal  to  make  the  deed,  that  the  defendant  in  the  execu- 
tion claimed  the  land  as  a  homestead,  but  it  appeared  that  it 
la  I  not  been  laid  off,  and  was  not  occupied  or  claimed  as  a 
homestead  at  the  time  of  sale  :  held,  that  the  rule  should  be 
made  absolute.     Scott  v.  Walton,  G7  N.  0.  E.  109. 

14.  A  sheriff,  selliug  land  under  execution,  may  maintain 
-an  action  in  his  name  against  the  purchaser  for  the  amount 
bid,  upon  tendering  a  deed  for  the  laud  sold.  McKee  v. 
Lineberger,  G9  N.  0.  li.  217. 

15.  The  relation  of  creditor  and  debtor  exist  between  the 
sheriff  and  such  purchaser,  by  force  of  contract  ot  sale,  and 
the  sheriff  is  left  to  enforce  his  rights  by  the  usual  remedy  of 
action,  unless  he  elects  to  rescind  the  contract  of  sale  aud  sell 
the  land  again.     Ibid. 

16.  Nor  is  it  necessary  to  enable  the  sheriff  to  bring  such 
action,  that  he  should  first  make  a  return  of  the  sale  ou  the 
execution.     Ibid. 

17.  A  bidder  at  a  sheriff's  sale  occupies  a  relation  alto- 
gether different  from  a  bidder  at  a  sale  made  by  order  of  a 
Court  ot  Equity.  In  the  latter  case,  the  Court  takes  the  bid- 
ding under  its  protection  aud  control,  and  manages  the  whole 
proceeding  until  the  sale  is  in  all  things  carried  into  effect : 
Whereas,  In  the  former  the  sheriff  makes  the  sale  by  him- 
self, without  any  confirmation  or  other  act  ot  the  Court,  and 
acts  by  force  of  a  statutory  power  to  sell,  &c.     Ibid. 

18.  A  bidder  at  a  sheriff's  sale  of  a  tract  of  land,  known 
as  the  "  Neagle  tract,"  cannot  avoid  his  bid,  because  the  sher- 
iff refused  to  convey  a  narrow  strip  of  laud  and  mill  site  and 
water  power  adjoining  the  same,  and  which  the  sheriff  did  not 
sell,  although  such  water  power,  &c.,  was  some  six  months 
before  the  sale,  advertised  as  belonging  to  the  •'  Xeagle  tract." 
Ibid. 

19.  In  1831  and  before,  in  order  to  subject  land  to  the 
payment  of  debts,  there  was  in  the  first  place,  a  judgment 
against  the  personal  representative,  fixing  the  debt;  and  in 
the  second  place,  a  svi.  fa.,  setting  out  the  judgment,  and 
calling  upon  the  heirs  to  show  cause  why  execution  should 
DOt  issue  -I'-ainst  the  land  which  had  descended:  then  fore. 

29 


450  SHERIFF— II— III. 

a  purchaser  at  a  sheriff's  sale  under  an  execution  unsup- 
ported by  such  judgment  and  scire  facias,  obtains  no  title. 
Crawford  v.  Dalrymple,  70  IS".  0.  K.  156. 

20.  A  sheriff,  who  advertises  a  sale  of  land,  levied  upon 
under  execution  to  take  place  on  Monday,  tbe  first  day  of 
the  term,  as  prescribed  by  law,  which  sale  is  postponed  from 
day  to  day,  has  a  right  to  sell  the  same  on  Friday  succeed- 
ing.    Wade  v.  Sanders,  70  N.  0.  R.  270. 

21.  Where  an  execution,  issued  from  the  County  Court  in 
1861,  and  regularly  thereafter  until  the  Spring  Term,  1807r 
of  the  Superior  Court,  to  which  Court  it  was  transferred  un- 
der the  ordinance  of  the  23d  of  June,  1800,  but  no  motion 
made  at  Spring  Term,  1807,  to  docket  it  in  the  Superior 
Court,  and  the  same  was  not  re-issued  until  December  (Spe- 
cial) Term,  1807,  such  execution  lost  its  lieu  on  the  land 
levied  upon,  and  a  sale  of  the  land  by  virtue  thereof,  con- 
veyed no  title.     Brem  v.  Jamiesson,  70  N.  C.  R.  500. 

22.  Where  the  name  of  one  or  more  of  the  defendants  is 
omitted  in  an  alias  execution,  regularly  issued  before  that 
time  and  levied  on  the  laud  of  such  defendant,  the  omission 
is  fatal,  and  a  sale  of  the  land  under  such  execution  is  in- 
valid.    Ibid. 

See  (Rent,  2.) 

III.     SHERIFF'S  RETURN. 

1.  The  mere  affidavit  of  the  party  upon  whom  a  notice- 
was  alleged  iu  the  sheriff's  return  to  have  been  served,  is  in 
the  absence  of  proof,  no  ground  for  reviewing  a  declaration 
in  a  decree,  that  it  satisfactorily  appeared  to  the  court  that 
such  return  was  true.     Cotten,  ex  \)arte,  Phil.  Eq.  R.  79. 

2.  Where  a  ven.  ex,  was  returned  to  August  Term  1806 
of  Wayne  County  Court  endorsed  "  no  sale  on  account  of 
the  Stay  Law  ;"  held,  that  such  was  not  a  due  return  ;  also, 
that  the  plaintiff  in  the  execution  was  eutitled  to  have  an- 
other writ  of  ven.  ex.  issued  from  the  August  Term.  Aycock 
v.  Harrison,  03  N.  C.  R.  145. 

3.  The  return  to  an  execution,  "  wholly  unsatisfied,"  is 
not  a  sufficient  return,  as  it  does  not  conclusively  appear 
thereby  that  no  goods  of  the  testator  were  to  be  found.  Af- 
ter an  absolute  judgment  against  executors,  the  proper  re- 
turn to  an  execution  issuing  thereon,  is  "  no  goods  or  chat- 
tels of  the  testator  to  be  found."  McDowell  v.  Clark,  08  N". 
C.  R.  118. 

4.  A  sheriff  is  bound  to  return  every  process  which  comes. 


SHERIFF— III— IV.  451 

to  his  Lands,  not  void,  with  a  statement  of  his  action  under 
it ;  and  if  he  has  not  completely  obeyed  it,  with  a  lawful 
reason  for  his  omission.     Bryan  v.  Hubbs,  09  N.  0.  R.  423. 

5.  Until  the  sheriff  received  notice  that  the  execution 
has  been  superseded,  lie  is  to  obey  it  according  to  its  tenor. 
On  receiving  such  notice,  it  is  his  duty  to  stop  proceeding, 
and  to  return  the  writ  with  a  statement  af  his  action  under 
it,  and  the  reason  for  his  ceasing  to  act.     Ibid. 

See  (Certiorari,  1.)  (Corporation,  1.)  (Sheriffs — of  the 
liability  of  sheriffs  and  their  sureties,  3.) 

IV.     INTERPLEADER  FOR  MONEY  IN  SHERIFF'S  HANDS. 

1.  When  a  sheriff  has  money  in  his  hand,  raised  under  exe- 
cutions against  the  same  defendant  in  favor  of  two  or  more  dif- 
ferent creditors,  and  the  money  is  claimed  by  one  of  the  cred- 
itors to  the  exclusion  of  the  others,  he  may,  for  the  purpose 
of  assertiug  his  claim,  obtain  a  rule  against  the  sheriff,  and 
under  the  C.  C  P.,  sec,  05,  cause  the  other  creditors  to  be 
brought  in  by  notice,  and  then  upon  the  answer  of  the  sheriff 
the  court  may  proceed  to  adjudicate  upon  the  rights  of  the 
parties,  and  in  doing  so,  will  not  be  bound  by  the  returns 
which  the  sheriff  may  have  previously  made  upon  the  execu- 
tions in  his  hands.     Dewey  v.  White,  Go  jS".  C.  R.  225. 

2.  The  G.  C.  P.,  sec,  05,  does  not  embrace  a  case 
where  a  sheriff  has  an  execution  in  favor  of  one  person,  and 
levies  it  upon  property  claimed  by  an  other,  as  in  such  a  case 
the  sheriff  cannot  require  these  persons  to  interplead,  because, 
if  the  claim  of  the  person,  against  whom  there  is  no  execu- 
tion, be  just,  the  sheriff  is  a  wrong-doer  as  to  him.     Ibid. 

3.  The  practice  of  the  Court  of  England  prior  to  the  Stat, 
of  1  and  2,  William  IV.  chap.  58,  and  under  that  statute, 
upon  conflicting  claims  to  money  in  the  hands  of  a  sheriff 
raised  under  executions  in  favor  of  different  creditors,  and 
also  the  practice  in  like  cases  in  the  court  of  the  several 
States  of  the  Union,  and  of  the  United  States,  and  of  this- 
State  prior  to  the  adoption  of  the  C.  C.  P.  stated  and  ex- 
plained.    Ibid. 

4.  When  a  sheriff  has  money  in  his  hands,  raised  under 
executions  in  favor  of  different  creditors  against  the  same 
defendant,  and  the  creditors  set  up  conflicting  claims  to  the 
money,  it  is  not  such  a  case  as  may  be  submitted  to  a  Judge, 
without  an  action  under  the  0  C  P.,  sec.  315,  by  the  adverse 
claimants.     Bates  v.  Lilly,  05  N.  C.  E.  232. 

5.  Under  the  former  system,  it  a  sheriff  hail  doubts  as  to 


452  SHERIFF— IV.— V. 

tbe  proper  application  of  money  in  Lis  bands  raised  under 
different  executions,  he  might  apply  to  the  court  for  advice, 
which  advice  would  be  given  upon  the  facts  disclosed  iu  his 
return  ;  and  the  court  would  refuse  to  give  it  if  the  sheriff 
claimed  an  interest  in  the  fund,  or  had  incurred  an  indepen- 
dent liability  to  any  of  the  execution  creditors.     Ibid. 

6  The  right  of  interpleader  given  by  the  0.  0.  P.,  under 
"which  a  sheriff  who  has  money  in  his  bands,  raised  under 
executions  in  favor  of  different  creditors  against  the  same 
defendant  may  bring  in  the  plaintiffs  in  the  executions  to 
contest  their  respective  claims,  was  intended  to  apply  to  a 
controversy  or  action  properly  constituted  in  court.     Ibid. 

V.     OF  THE  LIABILITY  OF  SHERIFFS  AND  THEIR  SURETIES. 

1.  Where  one  who  bad  been  arrested  under  a  capias  ad 
respondendum,  escaped  from  the  sheriff,  and  the  latter  by  his 
return  negatived  any  idea  that  be  intended  to  become  special 
bail  for  the  party  escaped  :  held,  that  the  sheriff  and  his  sure- 
ties were  liable  upon  his  official  bond  for  such  escape,  and 
that  the  measure  of  damages,  was,  not  the  debt  and  interest, 
but  such  actual  damages  as  the  plaintiff  has  sustained.  Luslc 
v.  Falls,  03  K  0.  E.  188. 

2.  An  action  brought  in  February  1808,  for  the  penalty 
of  one  hundred  dollars  against  a  sheriff  for  neglecting  to  note 
upon  process  the  day  on  which  it  was  received,  Eev.  Code, 
ch.  31,  scec.  39  :  by  the  effect  of  sees.  47  and  48  of  the  same 
chapter,  should  be  in  the  name  of  the  State  as  plaintiff. 
Duncan  v.  PMlpot,  04  X.  0.  E.  479. 

3.  Under  the  0.  0.  P.,  sees.  75  and  555,  a  sheriff  is  not 
required  to  execute  process  until  his  fees  are  paid  or  tendered 
by  the  person  at  whose  instance  the  service  is  to  be  rendered ; 
but  this  does  not  excuse  him  for  a  failure  to  make  a  return 
of  the  process.  A  writ  of  summons  is  a  mandate  of  the 
court  and  must  be  obeyed  by  its  officer,  and  if  he  has  any 
valid  excuse  for  not  executing  the  writ,  he  must  state  it  in 
bis  return.     Jones  v.  Gupton,  65  N".  0.  E.  48. 

4.  The  duties  and  liabilities  of  a  sheriff  in  relation  to  the 
execution  of  process  are  nearly  the  same  under  the  0.  0.  P. 
as  under  tbe  old  system,  (see  0.  0.  P.,  sec  354,)  but  the  mode 
of  procedure  for  enforcing  a  judgment  nisi  against  him  is 
(•hanged  from  a  scire  facias  to  a  civil  action,  as  prescribed  in 
0.  C.  P.,  sec.  302,  and  the  summons  must  be  in  the  same 
court  as  the  judgment,  and  must  be  returned  to  the  regular 
term  thereof.     Hid. 


SHERIFF— V.  453 

5.  After  a  judgment  has  been  given  summarily  on  mo- 
tion under  the  act  of  1869-70,  ch.  225,  sec.  34,  against  a 
defaulting  sheriff  and  his  sureties,  it  should  not  be  vacated 
upon  a  mere  motion  founded  upon  the  allegation  that  the 
sheriff's  bond  did  not  appear  to  have  been  accepted  by  the 
County  Commissioners  and  registered  by  their  order,  when 
it  did  appear  to  have  been  registered.  Jenkins  v.  Howell,  65 
JS\  C.  E.  61. 

6.  Under  the  act  of  1869-'70,  ch.  225,  sec.  34,  which,  iu 
the  case  of  a  defaulting  sheriff,  authorizes  a  summary  judg- 
ment on  motion  against  him  without  other  notice  than  is 
given  by  the  delinquency  of  the  officer,  the  word  "him'' 
ought  to  be  construed,  in  connection  with  other  provisions 
of  the  act,  to  mean  "  them,"  so  as  to  authorize  the  judgment 
to  be  taken  against  the  sheriff  and  his  sureties      Ibid. 

7.  The  Act  of  1869-70,  chap.  71,  which  repealed  certain 
acts  in  relation  to  appropriations  lor  railroads,  and  directed 
that  the  taxes  which  had  been  collected  under  them  for  pay- 
ing interest,  &c,  should  be  "credited  to  the  counties  of  the 
State  upon  the  tax  to  be  assessed  for  the  year  1870,  in  pro- 
portion to  the  amounts  collected  from  them  respectively," 
justified  the  sheriffs  iu  retaining  the  amount  of  such  taxes  iu 
their  settlement  with  the  Public  Treasurer,  until  it  was  re- 
pealed by  an  act  passed  the  21st  December,  1870.  Jenkins 
v.  Briggs,  65  X  C.  R.  159. 

8.  A  sheriff  cannot  be  amerced  for  failing  to  collect  a 
a  judgment  based  upon  a  note  executed  in  November,  1865, 
unless  he  had  actual  notice  that  the  judgment  was  granted 
upon  a  contract  made  after  the  1st  of  May,  1865.  Thompson 
v.  Bern/,  65  N.  C.  11.  184. 

9.  It  is  well  settled,  that  if  a  court  issuing  process  has  a 
general  jurisdiction  to  issue  such  process,  and  the  want  of 
jurisdiction  does  not  appear  upon  the  face  of  the  paper,  a 
sheriff  and  his  assistants  may  justify  under  it.  State  v.  J?ur- 
guson,  67  N.  C.  R.  219. 

10.  The  refusal  of  a  sheriff  to  pay  back,  on  demand, 
money  received  through  a  mutual  mistake,  in  excess  of  the 
true  amount  of  an  execution  collected  by  him,  is  a  private  mat- 
ter to  be  settled  between  the  parties,  and  is  not  a  breach  of 
his  official  bond,  for  which  his  sureties  can  be  held  responsi- 
ble.    Ireland  v.  TapscoU,  et  at.,  68  N.  C  R  300. 

11.  A  sheriff  having  an  execution  in  his  hands  is  not  in- 
dictable for  levying  upon  and  seizing  property  in  the  posses- 
sion of,  and  belonging  to  a  son  of  the  defendant  in  the  exe- 
cution, when  he  acts  bona  fide  under  a  bond  of  indemnity 


454  SHERIFF— Y—YL— SLANDER. 

He  is  liable  civilly,  but  Dot  criminally.     State  v.  Tatom,  69 
N.  0.  R.  35. 

See  (Abatement — By  the  death  of  the  parties,  8.) 

VI.     COMMISSIONS  AND  FEES. 

1.  Whenever  a  sherifl  into  whose  hands  an  execution  is 
placed,  levies  the  same  and  advertises  a  sale,  he  becomes  en- 
titled to  his  commissions.  And  if  the  plaiutirt  in  the  exe- 
cution receives  the  amount  from  the  debtor,  and  orders  the 
same  to  be  returned  unexecuted,  he  makes  himself  liable  tor 
the  sherifi 's  fees.     Willard  v.  Satchwell,  70  N.  0.  R.  208. 

2.  Until  his  fees  are  paid  or  tendered,  a  sherifl  is  not 
I)ound  to  execute  process.  Johnson  v.  Kennedy,  70  1ST.  0.  R. 
435. 


SLANDER. 

1.  In  an  action  of  slander  where  the  pleas  are  general 
issue  and  justification,  the  jury  are  not  to  consider  the  latter 
plea  if  they  find  the  former  one  to  be  true.  Sumner  v.  Chip- 
man,  65  N.  0.  R.  623. 

2.  Pleading  general  issue,  and  justification  to  an  action 
of  slander,  does  not  dispense  with  the  proving  of  the  words 
spoken,  nor  is  the  latter  plea  an  admission  of  the  speaking 
of  the  words  when  the  general  issue  had  been  pleaded.  Ibid. 

3.  In  an  action  for  slander,  if  the  defendant  does  not 
plead  the  statute  of  limitations,  the  plaintiff  may  recover, 
though  the  proof  shows  that  the  words  were  spoken  more 
than  six  months  before  the  commencement  of  the  action. 
Pegram  v.  Stoltz,  67  N.  0.  R.  144. 

4.  When  the  slanderous  words  are  alleged  to  have  been 
spoken  on  a  certain  day,  and  at  a  certain  place,  the  plaintiff 
may  prove  such  words  spoken  on  a  different  day  and  a  differ- 
ent place.     Hid. 

5.  Under  the  C  0.  P.,  if  the  complaint  alleges  a  positive 
charge  of  crime,  as  slander,  and  the  evidence  shows  a  condi- 
tional charge,  still  the  plaintiff  can  recover,  if  the  conditional 
words  conveyed  the  same  idea  to  the  minds  of  the  jury. 
Ibid. 

6.  When  the  complaint  in  an  action  for  libel  says  the  de- 
fendant "  published  concerning  the  plaintiff  in  a  newspaper, 
&c,  a  certain  article  containing  the  false  and  defamatory 


SLANDER,— SPECIAL  COURTS,  &c.  455 

matter  following,"  &c.,  it  sufficiently  avers  that  the  defama- 
tory matter  was  concerning  the  plaintiff.  The  article — which 
is  the  whole  article  and  every  part  of  it — is  averred  to  be 
concerning  the  plaintiff,  and  as  the  whole  includes  all  its 
parts,  the  defamatory  part  must  be  concerning  the  plaintiff. 
Carson  v.  Mills,  09  N.  C.  R.  122. 

7.  An  article  in  a  newspaper  containing  the  following 
words:  "No!  counsellors  and  friends  of  the  Adairs,  (who 
had  been  convicted  of  murder,)  I  blame  not  an  attorney  or 
attorneys  for  taking  fees  and  defending  the  most  guilty  crim- 
inals as  far  as  the  law  and  respectable  evidence  will  justify 
in  giving  them  a  fair  trial,  but  after  that,  going  to  the  streets 
among  people,  proclaiming  their  innocence,  trying  to  influ- 
ence public  opinion,  hiring  or  otherwise  procuring  false- 
hearted and  unprincipled  scoundrels  to  perjure  themselves 
by  giving  affidavits  and  implicating  other  innocent  persons 
to  obtain  the  pardon  or  release  of  the  Adairs.  Your  slanderous 
and  false  charges  against  innocent  men  must  fall  to  the 
ground,  but  they  show  your  unprincipled  course,"  is  apparent- 
ly libelous.     Ibid. 

See  (Pleading — General  principles  of  pleading,  4.) 


SPECIAL  COURTS  IN  CITIES  AND 

TOWNS. 

1.  Petit  larceny  being  a  felony  in  this  State,  the  Special 
Court  established  for  the  City  of  Wilmington  has  no  jurisdic- 
tion of  it.     Slate  v.  Hauyliton,  03  N.  C.  R.  49 L. 

2.  Neither  a  Justice  of  the  Peace,  nor  the  Judge  of  the 
Special  Court  of  the  City  of  Wilmington,  has  jurisdiction  over 
larceny.     McLaurine,  ex  parte,  03  N.  C.  K.  528. 

3.  The  power  of  the  Judge  of  the  Special  Court  of  Wil- 
mington to  issue  writs  of  habeas  corpus,  is  confined  to  crim- 
inal cases  hilling  within  his  jurisdiction.     Ibid. 

4.  By  the  Constitution  of  the  State  original  jurisdiction 
of  civil  actions  is  vested  exclusively  either  in  the  Superior 
Courts  or  in  J  ustices  of  the  Peace ;  and  Justices  of  the  Peace 
are  required  to  be  elected  by  the  several  townships ;  therefore, 
t  lie  act  of  December  10th,  1868,  (amending  the  charter  of  the 
City  of  Wilmington,)  so  far  as  it  gives  to  the  Judge  of  the 
Special  Court  jurisdiction  of  certain  penalties  and  lines,  and 
the  general  powers  of  a  Justice  of  the  Peace,  is  void.  Wil- 
mington v.  iJaris,  63  X.  C.  II.  582. 


456  SPECIAL  COURTS,  &0.-SPECIFIC,  &C-STAMPS. 

5.  Article  IV,  Sec.  19,  of  the  Constitution  authorizing 
the  Legislature  to  establish  Special  Courts  in  cities  or  towns, 
is  confined  to  misdemeanors.  The  Legislature  declared  that 
larceny  of  less  value  than  twenty-five  dollars  should  be  a  mis- 
demeanor. (Act  of  1869-'70,  ch.  37.)  State  v.  Walker,  65 
N.  C  E.  461. 

6.  The  effect  of  the  repeal  of  the  aforesaid  act  was  to  de- 
prive the  Special  Court  of  the  City  of  Wilmington  of  jurisdic- 
tion of  larceny.     Ibid. 

7.  Special  Courts  for  cities  and  towns  are  not  put  by  the 
Constitution  upon  the  same  footing  as  the  Court  for  the  trial 
of  impeachments,  the  Supreme  Court,  the  Superior  Courts 
and  Courts  of  Justices  of  the  Peace.  State  v.  Smith,  65  N. 
C.  R.  369. 

8.  These  latter  Courts  are  established  by  the  Constitution, 
and  owe  their  existence  to  that  instrument  alone,  and  are  in 
no  wise  dependent  upon  an  act  of  the  Legislature.     Ibid. 

9.  Special  Courts  for  cities  and  towns  are  creatures  of  the 
legislative  will  and  discretion,  and  owe  their  origin  to  the  ex- 
pression of  such  legislative  will  and  discretion  by  constitu- 
tional permission.     Ibid. 

10.  Such  discretion  is  not  exhausted  by  an  act  erecting 
such  courts,  but  may  be  directed  as  well  to  their  abolition. 
Ibid. 

11.  The  Judge  of  such  a  court  has  not  a  "  vested  right" 
in  his  office  within  the  meaning  of  the  Constitution,  as  that 
principle  only  applies  where  the  office  remaius.     Ibid. 

12.  The  act  of  March  30,  1871,  (act  1870-71,  chap.  60,) 
had  the  effect  to  abolish  the  office  of  Judge  of  Special  Court 
of  the  city  of  Wilmington.     Ibid. 


SPECIFIC    PERFORMANCE. 

See  (Contracts — Constructing  of  Contracts  and  their  en- 
forcement.) 


STAMPS. 

1.  The  United  States  statute,  (1866,  ch.  184,  sec.  9,)  pro- 
viding that  no  deed,  writing,  &c,  required  by  law  to  be 
stamped,  which  has  been  signed  or  issued  without  being  duly 


STAMPS.— STATUTES.  457 

stamped,  &o.,  shall  be  admitted  or  used  as  evidence  in  any 
court,  &C-,  &c. :  is  a  rule  of  evidence  for  the  Courts  of  the 
United  States  only.     Haight  v.  Grist,  64  N.  0.  R.  739. 

2.  Whether  the  courts  of  this  State  will  enforce  contracts 
which  were  not  stamped  by  the  parties  by  design,  to  defraud 
the  United  States  of  revenue :  Qucere  ?     Ibid. 


STATUTES. 

1.  An  act  incorporating  a  ferry  or  toll-bridge,  is  a  pri- 
vate act.     Carrow  v.  Bridge  Co.,  Phil.  L.  E.  118. 

2.  Therefore,  the  court  cannot  take  judicial  notice  of  the 
act  of  December,  1860,  which  amends  the  charter  of  the 
Washington  Toll-Bridge  Company.     Ibid. 

3.  That  construction  of  a  statue  which  attributes  to  the 
Legislature  the  exercise  of  a  doubtful  power,  will  not,  in  the 
absence  of  direct  words,  be  readily  adopted.  Mardre  v.  Fel- 
ton,  Phil.  L  E.  279. 

4.  The  Raleigh  and  Gaston  Railroad  Company  did  not 
incur  the  penalties  imposed  by  the  Rev.  Code,  ch.  101,  sec. 
30,  by  transporting  its  passengers  and  freights  in  boats  across 
the  Roanoke  at  Gaston,  during  the  time  that  there  was  no 
bridge  at  that  point,  in  consequence  of  its  having  been 
burned  by  the  military  in  1865.  Pugh  v.  B.  &  G.  B.  B.  Co., 
Phil.  L.  R.  35;). 

5.  It,  pending  an  appeal  in  a  criminal  case,  the  statute 
authorizing  the  indictment  is  repealed,  judgment  will  be  ar- 
rested.    State  v.  Nutt,  Phil.  L.  R.  20. 

6.  Statutes  which  change  modes  of  procedure,  govern 
suits  pending  at  the  time  of  their  enactment.  Sumner  v. 
Miller,  04  N.  C.  R.  688. 

7.  The  repeal  of  a  statute,  repealing  a  former  statute, 
leaves  the  latter  iu  force.  Brinhley  v.  Swieegood,  65  N.  C. 
E.  026. 

8.  To  give  operation  to  the  maxim  leges  postoriores,  pri- 
ores  contrarias  abrogant  the  latter  law  must  be  in  conflict 
with  the  former ;  therefore,  when  a  latter  statute  is  almost 
in  ipsissimis  verbis  with  a  former  one  :  held,  that  there  was 
no  repeal  of  the  former.     Kesler  v.  Smith,  60  IS".  C.  R.  154. 

9.  The  Statute,  Rev.  Code,  ch.  1,  sees.  9,  10,  11,  is  not 
repealed  by  Acts  1808-'09,  ch.  113,  sec.  70,  71,  72,  114. 
Ibid. 

10.  General  statutes  do  not  bind  the  sovereign,  unless  for 


458     STATUTES.— STAY  LAW.— SUBROGATION. 

that  purpose  the  sovereign  is  expressly  mentioned  in  them. 
State  v.Adair,  08  N.  C.  E.  08- 

11.  Where  a  statute  may  be  construed,  without  violence 
to  its  provisions,  in  a  sense  which  would  make  it  constitu- 
tional, a  court  will  give  it  that  construction,  rather  than  a 
contrary  one,  which  would  make  it  unconstitutional  and  void. 
Corners  of  Granville  Co.  v.  Ballard,  69  N.  0.  E.  18. 

12.  The  Act  of  1870-'71,  ch.  267,  applies  only  to  offences 
committed  after  its  passage,  and  does  not  repeal  the  Act  of 
1868-'69,  ch.  20,  as  to  any  offense  committed  before  State 
v.  Jones,  69  N.  0.  E  304. 

See  (Practice — Some  miscellaneous  rules  of  practice,  6.) 


STAY    LAW. 

1.  The  Stay  Law,  contained  in  the  Ordinances  of  June, 
1800,  and  March  1868,  impairs  the  obligation  ot  Contracts, 
^and  is  therefore  void.  Jacobs  v.  Smallwood,  Rives  v.  Wil- 
liams, Holt  v.  lseley,  Swepson  v.  Chapman,  Tate  v.  Estes, 
Grier  v.  Bysaner,  03  N.  0.  It.  112;  Rives  v.  Williams,  Ibid 
128,  Holt  v.  Iseley,  Ibid  128,  Swepson  v.  Chapman,  Ibid  130, 
Tate  v.  Estes,  Ibid  130,  Greenlee  v.  Greenlee,  Ibid  131. 

2.  The  act  of  March  10th,  1869,  (Stay  Law,)  does  not 
profess  to  authorize  the  continuance  of  causes  then  pending 
on  issues  regularly  joined  upon  the  ordinary  pleas  for  delay. 
Greenlee  v.  Greenlee,  03  N.  0.  E.  593. 


SUBROGATION. 

The  devisee  of  a  tract  of  land,  which,  by  direction  of  the 
testator,  had  been  levied  upon  to  satisfy  a  debt,  and  was  still 
bound  by  the  levy  at  the  death, —  having  paid  the  debt,  was 
entitled  to  be  subrogated  to  the  claim  of  the  creditor  against 
the  personal  estate  of  the  testator.  Redmond  v.  Burroughs, 
63  N.  0.  E.  242. 

See  (Surety  and  Principal,  15,  16,  24,  27.) 


.SUBETY  AXD  PRINCIPAL.  459 


SURETY  AND  PRINCIPAL. 

1.  Sureties  can  sustain  a  bill  to  have  a  debt  paid  by  their 
principal  or  out  of  his  estate,  before  they  have  been  compelled 
to  pay  the  debt.     Thigpen  v.  Price,  Phil,  Eq.  R.  14(5. 

2.  Sureties  upon  a  bond  may  file  a  bill  for  exoneration, 
without  being  compelled  previously  to  pay  off  such  bond; — 
but  such  equity  is  merely  collateral,  and  does  not  place  them 
in  a  better  condition  as  against  their  principal,  than  if  they 
held  his  bond  for  the  amount  for  which  they  are  liable.  Tay- 
lor v.  Miller,  Phil.  Eq.  R.  305. 

3.  Where  a  vendor  had  executed  a  full  title  to  the  land 
sold,  taking  from  the  vendee  a  personal  bond  with  two  sure- 
ties for  the  purchase  money  ;  upon  the  insolvency  and  death 
of  the  vendee  and  one  of  the  sureties,  and  a  sale  of  the  laud 
by  the  devisee  of  the  vendee  to  a  purchaser  with  notice : 
held,  that  the  other  surety  could  not  subject  the  land  for  his 
indemnification  upon  the  bond.     Miller  v.   Miller,  Phil.  Eq. 

MX,   <So. 

4.  The  relation  between  a  creditor  and  a  surety  does  not 
oblige  the  former  to  active  diligence  in  collecting  his  debt  out 
of  the  principal.     Thornton  v.  Thornton,  63  N.  0.  R.  211. 

5.  The  damage  received  by  a  surety  in  consequence  of 
the  creditor's  countermanding  an  execution  ordered  by  the 
former  against  the  property  of  the  principal  under  a  judg- 
ment obtained  by  the  creditor  against  the  principal  and  surety 
both,  is  damnum  absque  injuria,  and  gives  the  surety  no  cause 
of  complaint  which  a  court  will  hear.     Ibid. 

G.  Where  such  creditor,  in  his  character  as  an  attorney, 
obtained  an  adjudication  in  bankruptcy  against  the  principal 
judgment  debtor,  and  thus  prevented  any  hen  from  attach- 
ing upon  a  part  of  his  property  :  held,  that  the  surety  could 
not  complain.     Ibid. 

7.  Where  two  sureties  on  a  note  to  a  bank,  agreed,  after 
the  insolvency  of  their  principal,  to  employ  a  broker  to  buy 
notes  of  tbe  bank  to  an  amount  sufficient  to  pay  the  debt, 
and  one  of  them  paid  the  broker  for  notes  purchased  by  him 
and  discharged  the  debt:  held,  that  he  could  maintain  an 
action  on  the  case  against  his  co-surety  for  contribution. 
Deliossett  v.  Bradley,  63  N.  0.  E.  17. 

8  Where  the  principal  placed  property  in  the  bauds  of 
a  surety,  sufficient  to  satisfy  the  debt,  and  then  left  the  State  : 
held,  that  a  third  person,  also  bound  for  the  debt  as  surety, 
having  been  compelled  to  pay  it,  might  recover  its  amount 


460  SURETY  AND  PRINCIPAL. 

from  the  person  who  had  received  the  property,  without 
making  a  previous  demand.  Parham  v.  Green,  64  N.  0.  R. 
436. 

9.  Where  a  creditor,  by  a  binding  contract  gives  further 
time  to  the  principal  in  a  debt,  this  discharges  the  surety, 
"by  matter  in  pais."  Such  discharge  cannot  be  enforced  by 
a  Justice  of  the  Peace,  but  by  the  Superior  Court  only : 
Howerton  v.  Sprague,  64  ST.  C.  R.  451 . 

10.  Therefore,  in  a  case  in  which  the  creditor  had  taken 
out  a  process  against  the  principal  and  surety  before  a  Jus- 
tice of  the  Peace,  and  had  obtained  judgment,  and  levied  an 
execution  upon  the  goods  of  the  principal,  which  subsequent- 
ly he  had  instructed  the  officer  to  deliver  up,  upon,  as  was 
alleged,  some  binding  contract  to  give  such  principal  further 
time :  held,  that  the  transaction  did  not  amount  to  a  satis- 
faction of  the  execution,  but  merely  to  a  discharge  by  matter 
in  pais;  to  enforce  which  the  surety  did  right  in  resorting  to 
an  injunction  in  the  Superior  Court.     Ibid 

11.  AVhere  property  is  conveyed  to  the  State  by  one  for 
whom  it  has  become  surety,  in  order  to  indemnify  it  against 
the  risk  incurred,  the  State  becomes  a  trustee  of  such  prop- 
erty for  the  benefit  of  the  creditor,  also,  and  so,  cannot  do  any 
act  calculated  to  impair  the  security.  Bank  v.  Jenkins,  64 
H".  C.  R.  719. 

12.  Where  a  State  becomes  surety,  (here,  by  an  endorse- 
ment of  the  bonds  of  a  Railroad  Company,)  the  equities  aris- 
ing to  the  creditor  out  of  any  contract  for  indemnity  of  the 
State  by  the  principal  debtor,  are  as  much  entitled  to  protec- 
tion, as  would  be  any  rights  directly  created  by  a  contract 
between  the  creditor  and  the  State.     Ibid. 

13.  Whether  equitable  obligations  assumed  by  a  State  as 
a  trustee  can  be  enforced  indirectly  through  the  process  of  an 
injunction  against  the  Treasurer  of  the  State:  Qu&re't  Ibid. 

14.  Where  the  State  authorized  a  Railroad  Company  to 
issue  bonds  to  the  amount  of  $2,500,000,  secured  by  a  first 
mortgage  of  its  property,  and,  further,  engaged  to  endorse 
$1,000,000  of  such  bonds,  provided  that  the  Company  would 
deposit  with  the  Treasurer  of  the  State,  $500,000  other  of 
such  bonds,  as  an  indemnity  against  its  paying  principal  or 
interest  upon  those  which  it  had  endorsed  :  held,  that  a  cred- 
itor who  owned  some  of  the  endorsed  bonds  could  not  be  said 
to  be  either  injured  or  damaged  by  subsequent  legislation 
providing  that  the  $500,000  should  be  surrendered  to  the 
Company,  to  be  used  in  constructing  aud  completing  its  road 
and  not  otherwise.     Ibid. 


SURETY  AND  PRINCIPAL.  4G1 

15.  A  surety  to  a  note  who  pays  off  and  discharges  the 
same,  is  entitled  to  the  benefit  of  all  the  securities  which 
have  been  taken  by  the  creditor  from  the  principal.  York  v. 
Landis,  65  N.  0.  R.  535. 

10.  In  such  a  case  the  surety  can  assign  over  to  any  one 
his  demand  and  equitable  rights  against  the  principal,  and 
the  assignee  will  be  substituted  to  all  the  rights  of  the  origi- 
nal creditor.     1  bid. 

17.  If  a  creditor  enters  into  any  valid  contract  with  a  prin-  • 
<ipal  debtor,  without  the  assent  of  the  surety,  by  which  the 
rights  or  liabilities  of  the  surety  are  injuriously  affected,  such 
contract  discharges  the  surety.  Mere  delay  on  the  part  of 
the  creditor  to  sue  or  collect  the  debt,  or  even  his  refusal  to 
sue,  when  required  by  his  surety,  or  his  express  promise  of  in- 
definite indulgence,  does  noc  discharge  the  surety.  Deal  v. 
Cock  ran,  00  N.  C.  R.  260. 

18.  When  a  creditor  held  a  note  given  in  1859,  and  the 
principal  debtor  proposed  to  pay  the  same  in  Confederate 
toouey  in  1863,  which  the  creditor  declined  to  receive,  but 
made  an  agreement  that  if  the  debtor  wTould  postpone  the 
payment,  interest  should  cease  "from  that  time  until  the  de- 
mand ;"  Jieldj  that  such  an  agreement  did  not  amount  to  for- 
bearance for  any  definite  or  specified  time,  nor  increase  the 
risk  of  the  surety  in  any  way,  and  could  not  therefore  dis- 
charge him  from  liability.  It  would  seem  that  if  the  agreement 
had  been  to  forbear  until  the  end  of  the  war,  it  would  have 
been  nudmun  pactum,  and  therefore  not  binding.     Ibid. 

19.  A  surety  who  pays  the  bond  of  his  principal  thereby 
discharges  it;  and  his  right  of  action  against  the  principal 
for  the  recovery  of  the  amount  of  such  bond  being  upon  a 
simple  contract,  is  barred  after  three  years  by  the  statute  of 
limitations.     Bledsoe  v.  Nixon,  68  N.  C.  R.  521. 

2D.  Where,  upon  the  purchase  a  chattel  personal,  the 
purchaser  gave  his  note  with  sureties  for  the  price,  and  it 
was  agreed  by  parol  between  the  parties  at  the  time  that  the 
chattel  should  belong  to  the  sureties  until  the  note  was  paid: 
it  was  held,  that  the  effect  of  the  agreement  was  to  pass  the 
title  to  the  chattel  from  the  seller  to  the  sureties,  and  not 
from  the  seller  to  the  purchaser,  and  then  from  him  to  sure- 
ties for  their  indemnity,  for  in  the  latter  case  it  would  have 
"••Mi  void  for  waut  of  registration.  Worth)/  v.  Cole,  69  N. 
C.  R.  157. 

21.  When  the  sureties  to  a  note  given  by  the  purchaser 
for  the  price  of  a  personal  chattel  took  the  title  to  themselves 
until  the  note  should  be  paid,  and  afterwards  the  chattel  was 


4G2  SURETY  AND  PRINCIPAL. 

wrongfully  converted  by  another  person,  and  a  judgment  was 
obtained  by  the  seller  on  the  bond  against  the  sureties  :  it  teas 
held,  that  the  amount  recovered  by  the  sureties  for  the 
wrongful  conversion  of  the  chattel  might  be  adjudged  to  be 
satisfaction  of  the  judgment  obtained  on  the  note.     Ibid. 

22.  Although  an  officer  of  a  railroad  company  is  bound 
to  know  the  by-laws  of  the  corporation,  it  does  not  follow 
that  the  sureties  to  his  bond  are  presumed  to  know  them, 
unless  there  be  a  reference  to  them  in  the  bond.  The  obli- 
gation of  the  sureties  is  confined  to  the  words  of  their  bond, 
and  cannot  be  extended  beyond  them.  Atlantic  &  N.  C.  R. 
B.  v.  Cowles,  69  N.  0.  R.  59. 

23.  The  surety  on  a  bond  is  entitled  to  all  the  legal  and 
equitable  defences  to  which  his  principal  is  entitled,  which 
attached  to  or  was  counected  with  the  debt,  evidenced  by 
such  bond.  And  it  is  competent  for  such  surety  to  introduce 
any  evidence  tending  to  set  up  such  defence  ;  for  instance,  to 
prove  a  set-off  or  counterclaim  contracted  in  reference  to  the 
debt  sued  upon.     Jarratt  v.  Martin,  70  N.  0.  R.  459. 

24.  A  surety  to  an  administration  boud  who  paid  one- 
half  of  a  debt  recovered  against  the  insolvent  administrator, 
is  not  subrogated  to  the  rights  of  the  creditor  whose  debt  he 
paid,  but  to  the  rights  of  the  administrator  for  whom  he 
paid  it      Clark  v.  Williams,  70  N.  0.  R.  679. 

25.  An  administrator,  against  whom  a  judgment  was 
recovered  after  he  had  turned  over  the  property  of  his  intes- 
tate to  the  distributees,  has  the  light  to  recover  from  them, 
each  their  ratable  part  of  such  debt,  when  it  appears  that  the 
intestate  was  only  surety  to  the  debt  recovered,  and  that  at 
the  time  he  delivered  the  property  to  the  distributees,  the 
principal  in  the  debt  was  solvent  and  able  to  pay  the  same, 
and  was  rendered  insolvent  by  the  manumission  of  his  slaves. 
Ibid. 

20.  In  such  case,  the  distributees  will  contribute  each 
their  ratable  part  and  no  more,  the  solvent  ones  not  having 
to  pay  the  parts  of  the  insolvent.     Ibid. 

27.  A  surety  of  a  judgment  debtor,  has  an  equity  to  be 
subrogated  to  the  rights  of  his  creditor,  when  it  has  been 
agreed  by  several  creditors  of  the  same  debtor,  that  his  land 
should  be  sold,  although  conveyed  before,  their  executions 
became  liens,  and  the  proceeds  of  such  sale  should  be  divi- 
ded in  proportion  to  the  amounts  of  their  judgments — the 
judgment  of  the  creditor  whose  debt  was  secured,  being 
credited  with  his  interest  in  the  proceeds  of  the  sale,  so  as  to 
diminish  the  amount  to  be  paid  by  the  surety.     And  if  this 


SURETY,  &c— TAXES  AND  TAXATION.     463 

agreement  as  alleged  in  the  complaint  is  denied  or  contro- 
verted by  the  answer,  issues  must  be  made  and  submitted 
for  the  purpose  of  establishing  said  agreement  before  the  equi- 
ties of  the  plaintiffs  can  be  declared.  Person  v.  P.rry,  70 
X.  C  R  697. 

See  (Ordinances  of  the  Convention.) 


TAXES  AND  TAXATION- 

1.  Under  the  ordinance  of  the  18th  of  October,  1805,  con- 
cerning revenue,  a  provisional  sheriff,  who  had  not  given  bond 
as  required  thereby,  was  not  authorized  to  demand  of  mer- 
chants an  account  of  their  purchases,  and  of  the  taxes  due 
from  them.     State  v.  Blagge,  Phil.  L.  R.  11. 

2.  The  ordinance  of  the  1st  October,  1865.  entitled  "  An 
ordinance  to  provide,"  &c,  in  some  sections  operates  retro- 
spectively for  the  whole  of  that  year ;  such  operation  is  valid 
aud  binds  persons  even  during  such  time  within  that  year  as 
they  did  business  iu  places  "within  the  Federal  lines."  State 
v.  Bell,  Phil.  L.  R.  76. 

3.  Except  as  restrained  by  the  laws  of  the  United  States 
and  the  Constitution  of  the  State,  the  taxing  power  of  the 
State  extends  to  all  objects  within  its  territory,  and  has  no 
limitation  except  iu  the  responsibility  of  the  representative 
to  his  constituents.     Ibid. 

4.  A  tax  upon  the  past  business  of  the  current  year  is 
not  a  "a  capitation  tax."     Ibid. 

5.  The  12th  section  of  the  Revenue  Act  of  1866,  which 
imposes  a  tax  of  fifteen  per  cent,  upon  spirituous  liquors  pur- 
chased by  residents,  of  persons  not  residing  in  the  State,  and 
only  ten  per  cent,  upon  such  as  are  purchased  from  the  ma- 
ker in  the  State,  is  constitutional.  Davis  v.  Dashiel,  Phil.  L. 
R.  1 14.     (See  post,  26.) 

6.  The  right  of  suing  a  sheriff  to  recover  taxes  that  have 
been  paid  under  protest,  does  not  apply  to  taxes  that  have 
been  collected  by  virtue  of  a  tax  list.  Huggins  v.  Hinson, 
Phil.  L.  R.  126. 

7.  A  tax  list  is  of  the  nature  of  an  execution.     Ibid. 

8.  Distinction  as  to  the  above  right  in  case  where  the  tax 
is  collected  by  a  sheriff  without  a  list  and  with  one,  stated 
and  explained.      Ibid. 

0.  The  only  remedy  for  a  person  who  has  been  imprope  rl 
assessed  by  the  list-taker,  is  that  provided  under  the  Reve- 
nue Acts.     Ibid. 


464  TAXES  AND  TAXATION. 

10.  An  executor  is  not  liable,  as  such,  for  collateral  tax 
to  the  State  upon  a  devise  of  land  to  himself,  though  he  be 
liable  as  au  individual.     State  v.  Brevard,  Phil.  Eq.  R.  141. 

11.  An  executor,  in  this  State,  is  not  responsible  for  col- 
lateral taxes  upon  the  property  of  his  testator  situate  in  an- 
other State  at  tbe  death  of  the  testator.     Ibid. 

12.  If  au  executor  is  required  to  make  good  valueless  cur- 
rency in  his  hands  on  settlement  with  the  legatees,  the  State 
is  entitled  to  its  tax  on  the  amount.     Ibid. 

13.  The  duty  ot  collecting  taxes,  although  in  this  State 
ordinarily  discharged  by  sheriffs,  is  not  incident  to  their  office 
as  such,  and  so  does  not  terminate  with  the  determination 
of  such  office.     Perry  v.  Campbell,  63  N.  0.  R.  257. 

14.  Therefore,  one  who  is  specially  deputed  by  a  sheriff 
to  collect  taxes,  continues  to  be  a  deputy  for  that  purpose 
after  a  resignation  by  his  principal ;  and  the  sureties  upon 
his  bond  are  liable  for  the  money  by  him  collected  after  that 
time.     Ibid. 

15.  A  deputy  sheriff,  who  in  his  deputation  is  authorized 
to  collect  State  and  county  taxes  out  of  the  persons  named 
in  said  deputation,  is  not  required  to  exhibit  a  certified  copy 
of  the  tax  lists  from  the  officer  required  to  make  out  said 
list,  before  he  distrains  property  to  enforce  the  payment 
thereof.     State  v.  Lids,  65  N.  0.  E.  502. 

16.  The  tax  list  issued  to  a  sheriff  has  the  force  of  an 
execution,  and  justifies  the  sheriff  in  making  seizures  there- 
under as  fully  as  an  executiou  issued  from  a  court  of  compe- 
tent jurisdiction.     Ibid. 

17.  The  commissioners  of  a  county  have  no  right  to  ex- 
ceed the  double  of  the  State  tax,  except,  to  pay  the  debts  of 
the  count}-,  legally  contracted  before  the  adoption  ot  the  Con- 
stitution ;  when  the  tax  is  for  a  special  purpose,  and  has  been 
allowed  by  an  act  of  the  General  Assembly.  Simmons  v. 
Wilson,  66  X.  C.  R  336. 

18.  The  General  Assembly  have  an  unlimited  right  to 
tax  all  persons  domiciled  withiu  the  State,  and  all  property 
writhin  the  State,  except  so  far  as  this  right  has  been  limited 
by  the  provisions  of  the  Constitution,  either  by  express  words 
or  by  necessary  implication.  Pullen  v.  Commas  of  Wake, 
66  X.  C.  R.  361. 

19.  The  General  Assembly  has,  under  this  general  power, 
the  right  to  tax  legacies,  collateral  descents,  &c,  and  when 
such  tax  is  imposed  upon  the  succession,  or  on  the  right  of 
the  legatee  to  take  under  the  will,  the  power  is  not  restrained 
or  limited  by  the  provisions  of  the  Constitution  relative  to 
the  tax  on  property.     Ibid. 


TAXES  AXD  TAXATION.  465 

20.  Therefore,  the  Revenue  Act  of  1870-'71,  imposing  a 
tax  on  legacies,  &c,  is  not  unconstitutional,  yet  it  cannot  be 
retrospective  in  its  character.     Ibid. 

21.  In  selling  lands  for  taxes,  the  sheriff  acts  under  a 
statutory  power  which  must  be  strictly  pursued,  and  he  must 
cot  only  do  the  acts  which  are  required  to  bring  his  sale  with- 
in the  power,  but  he  must  do  them  within  the  time  prescribed. 
Taylor  v.  Allen,  07  X.  0.  R.  34G. 

22.  The  sheriff's  power  to  sell  land  for  taxes  being  given 
on  the  condition  that  it  be  exercised  within  a  certain  time, 
the  Legislature  cannot,  by  a  private  act,  give  him  power  to 
sell  after  the  expiration  of  the  time  allowed  by  law.     Ibid. 

23.  If  a  sheriff  fails  to  return  lands  sold  for  taxes  accord- 
ing to  the  requirements  of  the  statute,  Rev.  Code,  chap.  19, 
sec.  21,  the  sale  is  imperfect,  and  cannot  be  perfected  by  his 
•afterwards  doing  the  act.    Hid. 

21.  A  sheriff  who  sells  lands  for  taxes,  and  goes  out  of 
office  before  he  makes  a  deed,  cannot  afterwards  make  such 
a  deed.     Ibid. 

25.  The  mortgagee,  being  the  legal  owner  of  the  land 
mortgaged,  is  the  person  to  whom  notice  must  be  given  by 
the  sheriff  of  a  levv  and  sale  of  such  land  for  unpaid  taxes. 
Whitehurst  v.  Gas'dll,  09  X.  C.  R.  419. 

20.  The  Act  of  1808-'09,  ch.  108,  sec.  32,  which  declares 
that  "  every  non-resident  who  shall  sell  any  spirituous  liquors, 
by  sample  or  otherwise,  whether  delivered  or  to  be  delivered, 
shall  pay  an  annual  tax  of  fifty  dollars,  and  a  tax  of  like 
amount  as  is  payable  by  residents  on  their  purchases  or  sales, 
as  the  case  may  be,  of  similar  articles"  is  an  act  of  the  State 
imposing  a  discriminating  tax  upon  non-resident  traders  trad- 
ing in  the  State,  and  is  repugnant  to  the  Constitution  of  the 
United  States  and  void.  Sinclair,  Owens  &  Brown  v.  State 
of  North  Carolina,  09  X.  C  E.  47. 

27.  Money  deposited  in  banks  loses  its  distinct  character 
as  money,  and  becomes  a  debt  due  to  the  depositor  from  the 
bank,  and  as  such,  is  a  proper  subject  for  taxation.  Lilly  v. 
Commissioners  of  Cumberland,  09  X.  C.  U.  300. 

28.  Solvent  credits  are  property,  and  like  other  property 
are  liable  to  taxation  under  our  revenue  law.  Xor  does  it 
make  any  difference  if  such  credits  were  derived  from  the 
trade  of  a  merchant  in  the  usual  course  of  a  business  also 
taxed.    Ibid. 

29.  lhe  State,  until  forbidden  by  Congress,  has  the  pow- 
<•:  to  tax  National  bank  bills.     Ibid. 

30.  Where  money  is  placed  in  a  bank  on  deposit,  in  the 

30 


406    TAXES  AND  TAXATION— TENANTS,  &0. 

usual  course  of  business,  it  is  a  general  deposit,  and  the  depos- 
itor has  no  right  to  the  particular  mouey  deposited,  as  he  has 
in  the  case  of  &  special  deposit:  Therefore,  held,  to  be  error  iu 
the  Judge  below,  to  charge  that  money  so  deposited,  remain- 
ed the  money  of  the  depositor.  Baffin  v.  CmnnCrs  of  Or- 
ange, 09  N.  (J  R.  498. 

31.  United  States  Treasury  notes,  being  one  of  the  means 
used  for  the  support  and  administration  of  the  general  gov- 
ernment, cannot  be  taxed  by  a  State.  Nor  can  Congress  for 
the  same  reason,  tax  any  of  the  necessary  means  used  to  ad- 
minister the  goverment  of  any  of  the  States.     Ioid. 

32.  The  power  of  a  State  to  tax  the  circulation  of  the 
National  Banks,  depends  upou  whether  such  circulation  is 
for  the  use  of  the  United  States  Government  or  for  private 
profit.  Congress  can  protect  the  circulation  of  those  banks 
by  forbidding  the  States  to  tax  it;  until  this  is  done,  the 
States  have  the  right  to  tax  it.     Ibid. 

33.  The  provision  of  sec.  7,  Article  Y.  of  our  State  Con- 
stitution, restraining  County  Commissioners  from  levying  a 
tax  more  than  double  the  amount  of  the  State  tax,  does  not 
apply  to  taxes  levied  to  pay  debts  against  the  county,  exis- 
ting at,  or  before  the  adoption  of  the  Constitution.  Haagli- 
ton  v.  Comm'rs  of  Jones,  70  N.  0.  R.  400. 

34.  The  equation  of  taxation  provided  for  in  Art.  Y,  sec. 
1,  does  not  apply  to  taxes  to  pay  a  public  debt  existing  at 
the  adoption  ol  the  Constitution,  or  for  special  county  purpo- 
ses: nor  does  sec.  7.  of  the  same  article,  forbidding  counties 
to  levy  more  than  double  of  the  State  tax,  apply  to  such 
debts.     Street  v.  Comma's  of  Craven,  70  N.  C.  It.  044, 

35.  There  is  nothing  in  the  Constitution  of  the  State, 
which  prohibits  the  Commissioners  of  a  county  from  taxing, 
polls  to  pay  a  county  debt  incurred  before  1808;  and  there  is 
nothing  in  that  instrument,  fixing  a  maximum  of  taxation 
for  such  purpose.  Brothers  v.  Comm'rs  of  Currituck,  70 
N.  C.  11.  720. 

See  (Constitution,  1,  2,  9,  10,  11,  13,  22,  33,  24,  25,  33,  34,, 
35,  30,  37,  38,  39,  40,  47,  48,  49,  50,  51,  52,  53,  54,  55,  50?, 
57,  58.)  (Evidence — Its  relevancy  or  irrelevancy,  8.)  (Evi- 
dence— Public  Documents.)  (Towns  and  Cities,  8.)  (Town- 
ships, 2.) 


TENANTS  IN  COMMON. 
In  action  where  the  complaint  stated  a  bailment  of  a. 


TENANTS  IX  COMMOX— TENDER,  &c.      407 

certain  quantity  of  corn  and  fodder  to  the  defendant,  with  a 
refusal  by  the  latter  to  deliver  it,  and  asked  judgment  for 
such  goods  (or  their  value)  and  for  damages,  and  the  issue 
was  upon  the  detention,  and  also  upon  the  plaintiff's  title  ; 
the  fact  being  that  the  plaintiff  and  defendant  were  tenants 
in  common  of  the  articles :  held,  that  the  court  could  give 
no  "  relief  consistent  with  the  case  made  by  the  complaint, 
and  embraced  within  the  issue."  Powell  v.  Hill,  04  N.  C.  E. 
109. 

2.  A  tenant  in  common  cannot  maintain  an  action  against 
a  co-tenant  to  recover  specific  goods,  upon  a  refusal  by  the 
latter  to  deliver  possession  thereof:  his  remedy  is  partition. 
1  bid, 

3.  AY  he  re  a  tenant  in  common  of  laud  had  been  in  the 
sole  reception  of  the  profits  for  move  than  seven  years,  yet, 
without  evidence  to  the  contrary,  it  will  be  presumed  that 
his  original  entry  was  permissive,  and  under  an  assertion  of 
his  own  claim,  and  that  of  his  co-tenant,  and  no  subsequent 
claim  could  make  his  possession  adverse,  without  proof  of 
actual  ouster.     07  N.  0.  R.  150. 

4.  Where  A  enters  into  an  agreement  with  B  to  save 
from  a  wrecked  vessel  as  much  of  the  cargo  as  could  be 
saved,  and  B  agrees  to  allow  him,  A,  for  his  services,  such  a 
per  cent,  of  the  property  saved,  as  compensation  ;  and  in 
pursuance  of  such  agreement,  A  recovers  from  the  wreck  a 
portion  of  the  cargo,  and  lauds  it  on  the  beach,  in  a  place  of 
safety:  held,  That  A  and  B  are  tenants  in  common  of  the 
property  so  saved,  and  that  the  undivided  share  of  A  is  liable 
to  be  seized  by  the  sheriff  under  a  warrant  of  attachment. 
Boylston  Ins.  Co.  v.  Davis,  08  N.  O.  R.  17. 

5.  Where  a  tenant  in  common  has  improved  a  part  of 
the  common  land  he  is  entitled,  upon  the  partition  of  the 
land,  to  have  the  part  so  improved,  allotted  to  him  at  the 
original  valuation.     Pope  v.  Whitehead,  08  N.  C  R.  191. 

See  (Widow— Of  her  Dower,  33.) 


TENDER  AND  REFUSAL. 

1.  There  is  a  difference  between  the  plea  of  tinder  in  ac- 
tions for  money,  and  the  like  plea  in  actions  for  the  non -de- 
livery of  specific  articles:  in  the  latter  case  no  averment  of 
continued  readiness,  or  of  profert,  is  necessary, — because,  by 
the  tender  the  ankles  became  the  property  of  the  party  to 


468  TENDER  AND  EEFUSAL. 

whom  it  was  made,  and  if  subsequently  they  be  converted  by 
him  who  made  it,  he  is  responsible  for  their  value  when  con- 
verted.    Patton  v.  Hunt,  64  N.  0.  K.  163. 

2.  In  case  of  tender  of  specific  articles,  under  a  contract 
to  deliver  them,  they  must  be  separated  from  others  of  the 
same  sort,  so  as  to  be  capable  of  identification,  as  upon  a  sale. 
Ibid. 

3.  When  a  debtor  tenders  money  in  payment  of  his  debt 
to  the  creditor,  who  says  he  has  no  use  for  it,  and  thereupon 
the  debtor  concludes  to  retain  the  money  a  while  longer,  and 
does  so,  he  thereby  waives  the  tender.  Terrell  v.  Walker, 
i5o  N.  0.  li.  1)1. 

4.  To  make  a  tender  effectual,  the  debtor  must  be  ready, 
willing  and  able  to  pay,  and  must  so  inform  his  creditor,  and 
must  also  produce  the  money,  unless  such  production  be 
waived  by  the  absolute  refusal  by  the  creditor  to  receive  it. 
I  hid. 

5.  A  note  given  for  money  borrowed  during  the  late  war 
was,  by  force  of  the  acts  of  1866,  chapters  38  and  31),  and 
the  act,  1865,  presumptively  payable  in  Confederate  money 
in  the  absence  of  any  evidence  to  rebut  it,  yet  the  acts  did 
not  so  far  interfere  with  the  contract  as  to  change  it  into  one 
for  the  delivery  of  specific  articles ;  it  is  still  to  be  treated  as 
a  money  contract,  solvable  in  money,  and  not  in  specific 
goods.     1  bid. 

6.  A  tender  of  Confederate  treasury  notes  in  payment  of 
a  debt  solvable  in  such  notes,  will  not,  upon  the  refusal  to 
receive  them,  vest  in  the  creditor  the  property  in  any  certain 
Confederate  notes,  so  that,  by  virtue  of  such  ownership,  he 
will  become  liable  to  their  depreciation.  But  such  tender 
will  prevent  the  recoverv  of  the  interest  after  that  time. 
Ibid. 

7.  If  a  creditor  cause  his  debtor  to  desist  from  making  a 
tender  in  payment  of  a  note  at  a  particular  time  in  the  Con- 
federate currency  in  which  it  was  then  solvable,  by  a  promise 
that  he  will  receive  it  at  a  future  time,  and  then  refuses  to  re- 
ceive it,  it  will  not  be  such  a  fraud  (if  a  fraud  at  all)  for  which 
damages  would  be  allowed  to  defeat  the  action  on  the  note, 
or  be  used  as  a  set-off  or  recoupment.     Ibid. 

8.  A  plea  of  tender  is  of  no  avail  unless  it  is  accompanied 
by  a  payment  into  Court  of  the  amount  admitted  to  be  due. 
Jenldns  v.  Briggs,  65  N.  C.  R.  159. 

9.  The  maker  of  a  note  due  a  bank  has  the  right  to  ten- 
der in  payment  of  such  note,  as  equivalent  to  gold  and  silver 
coin,  the  bills  issued  bv  the  bank.  Blount,  (JomnVr,  <fc.,  \. 
Windley,  68  N.  C.  E.  1. 


TENDER,  &c— TOWNS  AND  CITIES.        4G9 

10.  The  maker  of  a  note  payable  on  demand,  may  at  any 
time  before  the  demand,  make  a  tender,  which  will  have  the 
same  effect,  as  if  the  note  was  payable  on  a  certain  day,  and 
the  tender  was  made  on  that  day.  Wooten,  Adrn'r,  v.  Sher- 
rard,  et  al,  OS  N.  0.  II.  334. 

11.  The  Courts  of  this  State  have  habitually  treated  notes 
payable  in  Confederate  money,  as  having  all  the  attributes  of 
promissory  notes,  and  a  tender  of  the  like  money  in  payment 
of  such  the  payee  refused  to  receive,  will  not  bar  tl  e  debt. 
Ibid. 

12.  A  promissory  note  payable  in  Confederate  currency 
in  1803,  is  a  contract  to  pay  money,  and  not  a  contract  to  de- 
liver specific  articles  :  hence,  a  tender  of  the  money  at  the  day 
does  not  satisfy  the  debt,  but  only  stops  the  interest.  Bank 
of  Charlotte  v.  Davidson,  70  N.  0.  R.  118. 

13.  In  an  action  upon  such  note,  where  the  money  ten- 
dered had  been  refused:  it  was  held,  that  although  the  de- 
fendant need  not  bring  into  Court  the  Confederate  money, 
now  worthless,  he  should  have  accompanied  his  plea  by  a 
payment  into  Court  of  the  statutory  equivalent  for  such  Con- 
federate money:  held  further,  that  the  plaintiff  was  entitled 
to  interest  from  the  date  of  the  service  of  his  summons.  II) id. 


TOWNS    AND    CITIES. 

1.  The  legislature  cannot  confer  on  the  Mayor  of  a  town 
the  judicial  powers  of  a  Justice  of  the  Peace  in  civil  actions. 
Article  4,  sec.  33,  confers  exclusive  original  jurisdiction  on 
Justices  of  the  Peace,  wherever  the  sum  demanded  does  not 
exceed  two  hundred  dollars.  Town  of  Edenton  v.  Wool,  05 
N.  C  R.  37!). 

2.  The  State  Constitution  requires  that  Justices  of  the 
Peace  shall  be  elected  by  townships,  whilst  Mayors  are  elec- 
ted by  towns  and  cities.     Ibid. 

3.  The  owner  of  land  in  an  incorporated  town,  may  law- 
fully remove  a  house  from  one  part  of  his  land  to  another, 
notwithstanding  that,  on  petition  tiled  for  the  purpose,  the 
town  authorities  have  ordered  the  laying  out  of  a  street  on 
that  portion  of  the  land  to  which  the  house  was  removed,  the 
street  not  having  been  actually  laid  off  and  located  prior  to 
such  removal,  and  the  owner  of  the  land  not  having  notice 
of  the  petition.     Slate  v.   Whitaker,  00  N.  C.  It.  030. 

4.  Whether,  in  such  case,  land  can  be  taken  without  just 


470  TOWNS  AND  CITIES. 

compensation,  quere,  but  it  certainly  cannot  be  taken  to  sub- 
serve private  interests,  as  when  an  inhabitant  seeks  to  cause 
a  street  to  be  located  on  the  land  of  another,  because  it  will 
facilitate  such  applicant  in  the  erection  of  a  store  to  be  used 
for  his  private  benefit.     Ibid 

5.  A  city  or  town  can  levy  a  tax  upon  such  subjects  only 
as  are  specified  in  its  charter;  therefore  the  city  of  Ealeigh 
cannot  levy  a  tax  upon  the  money  or  credits  of  its  citizens, 
as  they  are  not  mentioned  in  its  charter  as  the  subjects  of 
taxation.  Fallen,  et  ah,  v.  Board  of  Commissioners  of  the 
City  of  Raleigh,  68  N.  0.  R.  451. 

6.  The  corporate  powers  of  cities  and  towns  are  emana- 
tions from  the  State,  granted  for  purposes  of  convenience,  and 
they  are  not  allowed,  in  the  exercise  of  those  powers,  to  con- 
travene the  policy  of  the  State,  or  exceed  the  powers  con- 
ferred, and  much  less  those  which  are  either  expressly  or 
impliedly  prohibited.  Weith  &  Arent  v.  City  of  Wilmington, 
68  K  0.  li.  24. 

7.  Therefore,  where  the  city  of  W,  in  1862,  borrowed 
money  from  A  and  gave  him  a  bond,  which  money  was  used 
indirectly  in  aid  of  the  rebellion,  and  A,  before  the  bond  be- 
came due,  transferred  it  to  B  without  notice  as  to  its  consid- 
eration, and  the  city,  in  1867,  by  virtue  of  an  act  of  Assem- 
bly, took  up  the  bond  and  issued  to  B  in  its  place  other 
bonds  with  coupons  attached,  who  afterwards  sells  the  cou- 
pon bonds  in  open  market,  for  a  fair  price,  and  without  any 
notice  as  to  the  illegality  of  the  original  consideration  to  0. 
In  a  suit  by  C  against  the  city  to  recover  the  coupons  on  the 
bonds  purchased,  from  B  :  It  was  held,  that  0  could  not  re- 
cover, for  the  reason  that  all  bonds  of  a  like  nature  had  been 
declared  void  by  the  ordinance  of  the  Convention  of  1865, 
and  the  payment  of  the  same  was  thereby,  and  by  sec.  13, 
art.  7  of  the  Constitution,  prohibited,  and  as  being  against 
public  policy.     Ibid. 

8.  It  seems  that  the  wrord  "property"  is  used  by  the 
Constitution  in  a  sense  to  make  it  exclude  "  money,  credits, 
investments  in  bonds,"  &c.     Art.  5,  sec.  3.     Ibid. 

9  Section  26  of  the  charter  of  the  town  of  Salisbury, 
enacting  that  the  board  of  commissioners  "shall  have  power 
to  acquire  by  purchase  any  piece  or  pieces  of  land  as  pub- 
lic squares  for  said  town,  and  also  to  acquire  any  pieces  by 
purchase  or  lease  as  sites  for  markets  or  other  buildings  for 
the  use  of  said  town,"  confers  upon  the  commissioners  full 
power  to  acquire,  regulate  and  dispose  of  a  town  hall,  public 
squares,  &c,  in  such  manner  as  to  them  may  seem  best  for 


TOWNS  AND  CITIES.— TOWNSHIPS.        471 

the  interest  of  the  town.     Shaver  v.  Com'rs  of  Salisbury,  08 
N.  C.  E.  291. 

10.  The  act  of  1791,  cb.  31,  sec.  1,  empowering  the  Com- 
missioners of  the  city  of  Newbern  to  levy  taxes,  among 
other  specific  purposes,  ''for  such  other  good  purposes  as  the 
said  Commissioners  may  judge  necessary,"  and  the  act  of 
the  special  session  of  186G,  chap.  4,  sec.  3,  empowering  the 
Mayor  and  Council  of  said  City  "  by  all  needful  ordinances, 
rules  and  regulations,  to  secure  order,  health  and  quiet 
within  the  same,  and  for  one  mile  around,"  confer  on  the 
municipal  authorities  sufficient  power  to  repair  aud  build 
guard  houses  or  jails.     McLin  v.  Newbern,  70  N.  C.  E.  12. 

11.  The  Board  of  Commissioners  of  the  town  of  Newbern, 
under  the  act  of  their  incorporation,  aud  the  acts  ameuda- 
tory  thereof,  have  the  power  to  build  and  repair  a  market 
bouse.     Smith  v.  Newbern,  70  N.  C.  E.  14. 

12.  The  commissioners  of  a  town,  authorized  to  subscribe 
to  the  capital  stock  of  a  corporation,  upon  its  being  so  voted 
by  a  ''majority  of  the  voters  of  said  town  qualified  to  vote 
for  commissioners,"  are  justified  in  subscribing  the  amount 
voted,  if  a  majority  of  the  votes  cast  at  the  election  held  for 
that  purpose  be  in  favor  of  such  subscription,  although  a 
majority  of  all  the  voters  of  the  town  did  not  vote.  JReiger 
v.  Comm'rs  of  Beaufort,  70  N.  C  E.  319. 

13.  A  plaintiff,  whose  land  has  been  taken  by  the  com- 
missioners of  a  town  for  public  use,  waives  all  irregularities 
in  the  proceedings  condemning  such  laud,  when  he  appeals 
from  the  assessment  of  damages  by  the  persons  appointed  to 
assess  them.     Johnston  v.  Rankin,  70  N.  C.  E.  550. 

14.  Such  appeal  from  the  assessment  of  damages,  carries 
up  no  other  question  than  the  amount  of  the  compensation 
which  the  plaintiff  may  be  entitled  to  ;  and  the  commission- 
ers are  not  guilty  of  a  trespass  of  a  proceeding  with  their 
improvements  pending  the  appeal.     Ibid. 

See  (Constitution,  07,  09,  70,  71.) 


TOWNSHIPS. 

1.  Where  an  act  of  the  General  Assembly  authorized  the 
election  in  townships  containing  cities  and  towns,  ot  a  larger 
number  of  Justices  than  two,  (Const.,  Art.  VII,  sec.  5,)  all 
such  Justices  are  members  of  the  Township  Board  of  Trus- 
tees.    Conohj  v.  Harriss,  04  N.  C.  E.  662. 


472  TOWNSHIP  TEUSTEES.— TRESPASS. 

2.  Under  the  Constitution  and  Act  of  1868-'69,  ch.  165;, 
townships  have  not  the  power  of  taxation  for  school  pur- 
poses, either  through  their  trustees  or  committees.  Nor 
have  the  commissioners  of  a  county  the  power  to  levy  a 
township  tax,  as  distinguished  from  the  general  county  taxr 
for  school  purposes.  And  in  laying  the  county  tax  for  school 
purposes,  the  equation  of  taxation  must  be  observed.  Lane 
v.  Stanley,  65  N.  0.  E.  153. 


TOWNSHIP  TRUSTEES. 

Township  Trustees  have  no  authority  to  contract  for  build- 
ing bridges ;  when  such  a  contract  is  entered  into  without 
the  sanction  and  supervision  of  the  County  Commissioneis? , 
it  is  a  nullity.     Paine  v.  Caldwell,  65  N.  C.  E.  488. 

See  (Evidence — Records  of  court  and  records  and  by  laws 
of  corporations,  5.) 


TRESPASS. 

1.  Where  a  ditch  formed  the  boundary  between  the  lands 
of  the  plaintiff  and  those  ot  A  B,  and  an  obstruction  had  been 
placed  therein  by  the  plaintiff' with  the  consent  of  A  B,  in  or- 
der to  prevent  sand  from  being  carried  down  and  choking  a 
ditch  of  his  own :  held,  that  trespass  was  not  the  proper  form 
of  action  to  redress  an  injury  (the  choking  of  the  plaintiff's 
ditch)  caused  by  the  defendant's  removing  so  much  of  such 
obstruction  as  was  upon  A  B's  half  of  the  boundary  ditch — 
the  latter  having  consented  to  such  removal.  Ilogwood  v. 
Edwards,  Phil.  L.  E.  350. 

2.  Two  neighbors  having  agreed  to  build  a  rail  fence  up- 
on the  boundary  between  them,  it  was  also  agreed  that  the 
eastern  half  of  it  should  be  built  by  the  plaintiff  and  the  west- 
ern by  the  defendant.  In  building  his  part  the  defendant, 
inadvertently,  or  to  get  a  better  location,  placed  it  altogether 
upon  the  plaintiff's  laud :  held,  that  he  was  not  liable  to  the 
plaintiff  in  an  action  of  trespass  quare  clausum  free/it,  for  sub- 
sequently removing  his  part  of  such  fence.  Whiffield  v. 
Bodenliammer,  Phil.  L.  E.  3G2. 

3.  Held  also,  that  neither  the  agreement  between  the  par- 
ties about  the  building  of  the  fence,  nor  a  subsequent  notice  • 


TRESPASS.— TROVER.  473 

given  by  the  defendant  to  the  plaintiff  of  bis  intention  to  re- 
move it,  were  (under  the  circumstances)  evidence  of  license 
of  a  removal  by  the  plaintiff.     llnd. 

4.  An  officer  having  two  executions  against  the  plaintiff 
and  his  father,  and  another  execution  against  the  father 
alone,  levied  on  three  horses  belonging  to  the  plaintiff,  as  the 
property  of  the  father;  the  plaintiff  offered  to  pay  off  the 
executions  against  himself,  but  the  officer  refused  to  receive 
the  money,  and  proceeded  to  sell  the  horses  :  held,  that  the 
officer  became  a  trespasser  ah  initio,  aud  was  liable  in  an  ac- 
tion of  trespass,  for  the  value  of  the  two  horses  last  sold. 
Parish  v.  Wilhelm,  03  N.  C.  R.  50. 

5.  A  person  is  not  justified  in  killing  the  hog  of  another 
because  it  has  repeatedly  broken  through  his  fences,  and 
when  killed  was  within  his  enclosed  premises,  into  which  it 
had  broken  immediately  before  on  being  driven  out  of  his 
corn  field.     Bust  v.  Mingues,  (54  N.  (XR.  44. 

6.  The  plaintiff  owned  an  ass,  which  he  knew  to  be  dan- 
gerous, and  in  the  habit  of  pursuing  and  injuring  stock,  and 
with  a  knowledge  of  such  vicious  qualities,  he  permitted  him 
to  run  at  large  :  held,  that  if  such  an  animal  is  found  pursu- 
ing a  cow  which  he  threw  down  and  was  in  the  act  of  stamp- 
ing her,  wheu  the  defendant,  believing  it  was  necessary  to 
kill  him  to  save  the  life  of  his  cow,  killed  the  ass,  that  de- 
fendant was  justifiable.     Williams  v.  Dixon,  05  JST.  0.  R.  417. 

See  (Abatement — By  the  death  of  parties,  2.) 


TROVER. 

1.  Possession  of  a  chattel  by  one  who  holds  for  himself  in 
respect  to  either  a  general  or  a  special  property,  will  support 
replevin  or  trover;  such  possession  for  another  will  not  sup- 
port an  action  ;  therefore,  where  the  plaintiff  took  possession 
of  a  steamboat  which  had  been  sold  to  him  by  a  sheriff,  with 
the  understanding  that  if  the  sale  was  not  valid  he  should  be 
baillee  for  the  sheriff':  held,  that  he  had  title  sufficient  to 
maintain  replevin.     Scott  v.  Elliott,  Phil.  L.  R.  104. 

2.  Where  two  persons  claimed  a  mule  adversely  to  each 
other,  held  that  the  fact  that  the  defendant  prevailed  upon  the 
plaintiff  to  give  it  into  his  possession  by  making  an  affidavit 
that  it  was  his,  and  then  put  it  at  work,  did  not  constitute  a 
conversion:  also,  that  when,  a  few  days  afterwards,  the  plain- 
tiff went  to  the  defendant  and  insisted  upon  the  mule  being 


474        TROVER.— TRUSTS  AND  TRUSTEES. 

delivered  back,  and  it  was  agreed  between  the  parties  that 
they  should  meet  on  a  day  fixed  and  settle  the  question,  the 
plaintiff  could  not,  without  a  demand,  bring  an  action  of  trover 
for  the  mule  before  such  day.  Whether  he  could  have  done  so 
after  a  demand  quaere.     Finch  v.  Clarke,  Phil.  L.  R.  335. 

3.  Where  the  owner  of  a  slave  hired  her  out  tor  the  year 
1S05  for  a  share  of  the  crop,  and  such  share  was  delivered  to 
him :  held,  that  no  question  as  to  the  rights  of  the  slave  to 
she  product  of  her  labor  after  emancipation,  could  be  raised 
in  defence  to  an  action  of  trover  brought  by  the  owner  against 
persons  who,  claiming  under  a  sale  from  the  slave,  converted 
the  share  so  set  apart.   Chandler  v.  Holland,  Phil.  L.  R.  598. 


TRUSTS  AND  TRUSTEES. 

1.  Where  a  creditor  has  exhausted  legal  remedies  with- 
out avail,  he  may  have  the  assistance  of  equity  in  subjecting 
to  his  claim  the  trust  funds  of  his  debtor — as  here,  an  interest 
in  an  estate  in  the  hands  of  an  administrator.  Bennick  v. 
Bennich,  Phil.  Eq.  R.  45. 

2.  Where  a  trustee,  holding  land  as  security  for  a  credi- 
tor residing  in  Pennsylvania,  had  been  compelled  by  a  decree 
in  a  Confederate  Court  to  sell  and  pay  the  proceeds  to  one 
•of  its  officers  :  held,  that  such  creditor  could  still  subject  the 
land  to  his  debt,  whilst  in  the  hands  of  a  purchaser  with  no- 
tice.    Ward  v.  Brandt,  Phil  Eq.  R.  71. 

3.  Also,  that  the  remedy  in  such  case  is  not  to  order  the 
deed  to  the  purchaser  to  be  delivered  up  for  cancellation,  but 
to  declare  such  purchaser  affected  by  the  trust.     1  bid. 

4.  The  prayer  of  the  bill  being  for  a  cancellation  of  the 
deed  and  for  general  relief,  the  court,  declining  to  grant  the 
former  part  of  the  prayer,  under  the  latter  declared  the  pur- 
chaser to  be  a  trustee.     Ibid. 

5.  One  in  possession  under  a  purchase  of  a  resulting 
trust  in  land,  conveyed  to  a  trustee  to  secure  creditors  or 
sureties,  does  not  hold  adversely  to  the  trustee  and  cestui 
que  trusts.     Thigpen  v.  Price,  Phil.  Eq.  R.  146 

G.  Where  one  of  the  obligors  upon  a  bond  for  $102  given 
in  1858,  became  insolvent  in  18G1,  and  the  other  in  18G5, 
having  been  in  failing  circumstances  for  two  or  more  years 
before,  the  trustee  was  held  not  to  be  responsible  for  negli- 
gence as  to  collection.     Donnell  v.  Donnell,  Phil.  Eq.  R.  148. 

7.     Upon  taking  an  account  between  a  cestui  que  trust  and 


TRUSTS  AND  TRUSTEES.  475 

trustee :  held,  that  the  former  could  uot  in  1S6G  raise  any 
question  as  to  the  value  ot  Confederate  Treasury  notes  re- 
ceived by  him,  being  sui  juris,  without  objection  in  1803, 
1864  and  18G5.     Ibid. 

8.  Where  both  principal  and  surety  upon  a  bond  given  in 
1857  for  $2,500,  were  then  and  still  solvent,  and  there  was 
no  necessity  for  its  collection,  the  trustee  was  held  responsi- 
ble for  collecting  it  in  February  1803  in  Confederate  notes 
and  individual  notes  made  after  1861.     Ibid. 

9.  The  trustee  was  responsible  for  collecting  more  of  the 
interest  upon  the  bonds  in  his  hands  than  was  necessary  for 
the  maintenance  and  support  of  his  cestui  que  trust.     Ibid. 

10.  A  bill  had  been  filed  by  a  creditor  not  secured  in  a 
deed-iu-trust,  to  subject  the  surplus  of  the  property  so  con- 
veyed to  the  payment  of  his  debt,  and  under  an  order  in  the 
cause  the  clerk  had  reported  that  such  property  was  amply 
sufficient  to  pay  all  the  debts,  including  that  of  the  plaintiff: 
held,  that  a  decree  that  the  trustee  should  pay  to  the  plaintiff 
his debt,  was  erroneous;  and  that  the  proper  decree  would 
have  been  that  the  trustee  should  sell  enough  of  the  property 
to  satisfy  the  judgment.  Bobbitt  v.  Brownlow,  Phil.  Eq.  R. 
252. 

11.  By  Pearson,  C.  J.,  arguendo.  If  the  report  had  stated 
that  the  trustee  had  on  hand  cash  "  amply  sufficient,"  &c,  a 
decree  against  the  trustee  individually  would  have  been 
proper.     Ibid. 

12.  Also,  If  the  plaintiff  had  been  secured  in  the  deed-iu- 
trust  the  decree  might  have  been  correct.     Ibid. 

13.  In  a  contest  between  a  trustee,  under  a  deed  made 
by  the  holder  of  a  note,  and  a  creditor,  by  attachment  and 
garnishment  of  the  maker,  the  lien  ot  the  former  begins  from 
the  time  at  which  the  deed  is  delivered  to  the  Register,  and 
that  of  the  latter  from  the  time  when  the  summons  is  per- 
sonalltf  served  upon  the  maker.  Parker  v.  Scott,  04  N.  C.  R. 
118. 

14.  Therefore,  where  the  deed  was  delivered  to  the  Reg- 
ister at  10  o'clock,  A.  M.,  Dec.  20th  1800,  and  actually  reg- 
istered January  28th  1<S(»7 ;  and  the  summons  for  the  garni- 
shee was  ieftat  his  residence  at  8  o'clock,  A.  M.,  Dec  20th 
1800,  but  not  actually  received  by  him  until  the  evening  of 
that  dav:  Held,  that  the  lien  under  the  deed  had  priority. 
Ibid. 

15.  A  deed-in-trust  to  pay  debts,  which  reserves  to  the 
grantor's  wife  dower  in  the  land  conveyed  is,  so  far,  inopera- 
live,  but  the  invalidity  of  such  reservation  does  not  avoid  the 
deed.     Carter  v.  Cocke,  G4  N.  C.  R.  239. 


47(5  TEUSTS  AND  TRUSTEES. 

16.  Where  such  deed  set  forth  that  the  grantor  had  a  life 
estate  in  a  certain  fund  of  $8,500,  which,  upon  his  death, 
would  go  to  his  issue,  and  that  he  had  made  use  of  such  fuud, 
and  therefore  provided  that  the  trustee  should  pay  the  $8,500 
immediately  to  such  issue,  [making  no  abatement  for  the  life 
estate]  Held,  that  as  the  deed  furnished  the  means  for  cor- 
recting the  mistake  into  which  the  grantor  had  fallen,  the 
provision,  in  effect,  amounted  to  no  more  than  that  the  trus- 
tee should  pay  to  such  issue,  the  value  of  their  reversionary 
claim.    Ibid. 

17.  Nor  is  a  provision  for  satisfying  a  creditor  in  case 
he  should  pay  ''liberally"  for  certain  property,  invalid,  in  a 
case  where  the  fund  applicable  to  the  grantor's  debts  is,  in 
proportion,  small,  and  such  liberal  bidding  will  turn  to  the 
benefit  of  the  fund,  and  not  of  the  grantor  ;  therefore,  where, 
in  such  a  case,  the  deed  provided  in  the  first  place  for  the 
payment  of  two  specified  debts  by  a  sale  of  property  to  the 
highest  bidder  for  cash,  and  afterwards,  (having  referred  to 
a  third  debt  as  one  he  wished  to  pay,)  directed  that  the  trus- 
tee "  instead  of  selling  the  said  mouutain  lands  as  hereinbe- 
fore provided,  is  hereby  fully  authorized  and  empowered  to 
adjust  said  debt,  provided  a  portion  of  said  mountain  lands 
would  be  taken  at  liberal  prices  in  full  satisfaction  of  the 
same :"  held,  that  the  provision  was  valid.     Ibid. 

18.  In  all  cases  where  there  is  a  transmutation  of  posses- 
sion under  a  deed,  and,  by  any  means  other  than  a  declara- 
tion of  an  express  trust  in  writing,  the  trust  estate  becomes 
disjoined  from  the  legal  estate,  parol  evidence  of  the  acts, 
dealings  and  declarations  of  the  parties,  becomes  competent, 
to  ascertain  the  nature  and  limits  of  such  trust.  Ferguson 
v.  Haas,  04  N.  O.  E.  772. 

19.  Where  A  made  a  deed  for  land,  without  considera- 
tion, to  his  brother,  B,  and  the  latter,  afterwards,  under  a 
parol  agreement  with  A,  bought  the  same  land,  when  sold 
under  executions  against  A,  and  both  continued  to  live  to- 
gether upon  such  land  for  several  years,  and  until  their 
deaths  ;  upon  a  controversy  arising  between  their  respective 
heirs,  in  regard  to  the  title :  held,  that  the  facts  in  regard  to 
the  manner  in  which  the  money  that  was  paid  at  the  sheriff's 
sale  was  raised,  and  the  terms  upon  which  A  and  B  lived  to- 
gether upon  the  land,  as  well  as  the  declarations  and  admis- 
sions of  B  as  to  the  rights  of  A  in  the  land,  were  competent 
evidence  to  establish  a  trust  in  said  land  in  favor  of  A. 
Ibid. 

20.  An  administrator  who  procures  the  sale  of  the  land 


TRUSTS  AND  TRUSTEES  477 

of  his  intestate  for  the  payment  of  debts,  and  has  himself  ap- 
pointed commissions  to  make  the  sale,  is  subject  to  the  rule 
whicb  prohibits  a  trustee  from  purchasing  the  land,  either 
personally  or  by  an  agent.     Roberts  v.  Roberts,  65  N.  0.  R  27. 

21.  A  trustee  can  purchase  at  his  own  sale  only  when  he 
does  so  without  fraud,  and  with  the  consent  of  the  cestui  que 
trust,  at  the  time,  or  by  his  subsequent  sanction.     Ibid. 

22.  A  vendor,  who'  has  contracted  to  sell  his  laud,  is  in 
equity  a  trustee  for  the  purchaser,  but  if  he  has  not  received 
the  whole  of  the  purchase  money,  he  is  not  a  mere  naked  trus- 
tee, and  upon  becoming  a  bankrupt,  his  interest  in  the  land 
will,  by  proper  assignments,  pass  to  the  assignee  in  bank- 
ruptcy under  the  14th  section  of  the  bankrupt  act.  Swepson 
v.  Rouse,  05  N.  0.  R.  34. 

23.  The  distinction  between  actions  in  law  and  suits  in 
equity,  as  to  the  forms  of  procedure  has  been  abolished  in 
this  State,  but  the  distinction  between  legal  and  equitable 
rights  still  remains.  Matthews  v.  McPherson,  05  N.  0.  li.  189. 

24.  The  rights  of  a  cestui  que  trust  under  the  old  system 
were  administered  in  a  Court  of  Equity.  In  trusts  relating 
to  real  property  where  the  purposes  of  the  trust  were  com- 
pleted, and  the  trustee  bad  been  paid  his  reasonable  charges 
and  expenses,  the  cestui  que  trust  could  compel  a  conveyance 
of  the  legal  estate.  Until  a  cestui  que  trust  has  acquired  such 
a  perfect  equitable  title,  he  cannot,  under  the  0.  0.  P.,  main- 
tain a  civil  action  to  recover  possession  of  real  estate  held  by 
a  person  under  the  legal  title.     Ibid. 

25.  Where  a  husband  purchased  and  paid  for  a  lot  of  laud, 
and  procured  the  vendor  to  convey  it  by  a  deed  of  bargaiu  and 
sale  to  a  trustee  in  trust  for  the  sole  and  separate  use  of  the 
wife,  "to  dispose  of  to  any  person  she  may  wish  by  deed  or 
appointment  in  writing  in  the  nature  of  a  will,"  and  she  having 
died  without  disposing  of  the  laud  by  deed  or  will,  it  was  held, 
that  as  the  trust  was  not  declared  for  her  and  her  heirs,  there 
was  a  contingent  resulting  trust  in  favor  of  her  husband, 
which  upon  his  death  intestate  before  his  wife  had  descended 
to  his  heir-at-law.     Levy  v.  Grijfis,  65  N.  0.  11.  230. 

20.  A  devise  to  a  trustee  in  trust  for  the  sole  and  separate 
use  of  a  married  woman  with  a  power  given  to  her  of  appoint- 
ing the  estate  in  fee  by  deed  or  will,  will  vest  the  trust  in  her 
in  fee  under  the  Rev.  Code,  chap.  1 10,  sec  20,  and  it  will  not 
be  inconsistent  with  the  power  of  appointment,  because  with- 
out such  power  she  could  not  dispose  of  real  estate  by  will 
while  she  remained  a  married  woman.     Ihid 

il.  The  distinction  between  executory  and  executed  trusts, 


478  TEUSTS  AND  TEUSTEES. 

and  the  doctrine  of  powers  of  appointment  given  to  any  per- 
son, and  particularly  to  be  a  married  woman,  discussed  and 
explained.     Ibid. 

28.  When  a  debtor  executed  a  deed  conveying  a  tract  of 
land  in  trust  to  pay  specified  debts,  and  it  was  provided  in 
the  deed  in  which  no  money  consideration  was  recited,  that 
if  the  debts  were  not  paid  on  or  before  a  particular  day,  the 
trustee  should  sell  the  land  and  "  pay  off  and  discharge  all 
costs  aud  charges  for  the  drawing  and  execution  of  this 
trust,"  and,  the  debts  not  having  been  paid,  the  trustee  did 
sell  the  laud  aud  pay  them  out  of  the  proceeds  :  It  was  held, 
that  the  deed  in  trust  not  being  upon  a  valuable  considera- 
tion, there  was  a  resulting  use  for  the  grantor;  subject,  how- 
ever, to  a  scintilla  juris  iu  the  trustee  sufficient  to  feed  the 
contingent  use  that  might  be  created  by  an  exercise  of  the 
power  of  sale,  and  that  when  the  sale  was  made,  and  the 
purchase  money  was  received  by  the  trustee  and  paid  to  the 
creditors  mentioned  in  the  trust,  the  purchaser  acquired  a 
good  title  against  the  grantor  and  his  other  creditors.  Ilogan 
v.  Strayhorn,  Go  N.  0-  E.  270. 

29.  Under  the  act  of  1715,  (Eev.  Code,  ch.  37,  sec.  1)  the 
want  of  a  valuable  consideration  will  not  prevent  a  deed  for 
land,  registered  in  the  county  where  the  land  lies,  from  pass- 
ing the  title  thereto.     Ibid. 

30.  The  act  of  1861,  ch.  4,  sec.  4,  which  provides  "  that 
all  deeds  of  trust  and  mortgages  hereafter  made,  &c,  to  se- 
cure debts,  shall  be  void  as  to  creditors,  unless  it  is  expressly 
declared  therein  that  the  proceeds  of  sale  thereunder  shall 
be  appropriated  to  the  payment  of  all  the  debts  and  liabili- 
ties of  the  trustor  or  mortgagor  equally  j)ro  rata"  was  con- 
fined to  pre-existing  debts,  and  did  not  apply  to  a  transac- 
tion when  there  was  no  debt  save  that  which  grew  out  of  the 
transaction  itself,  and  formed  a  material  part  of  it.  McKay 
Gilliam,  G5KC.K.  130. 

31.  If  a  person  lend  money,  and  to  secure  the  payment 
take  a  mortgage  instead  of  personal  security  as  a  part  of  the 
transaction,  it  is  a  valuable  consideration  under  the  statute 
of  27th  Elizabeth,  as  against  prior  donees,  and  he  stands  on 
the  footing  of  a  purchaser  tor  a  valuable  consideration  ;  but, 
if  he  have  a  pre  existing  debt  only  and  take  a  mortgage  or  a 
deed  in  trust  to  secure  his  debt,  although  it  was  valid  under 
the  13th  Elizabeth  as  against  other  creditors,  it  is  not  valid 
as  against  prior  donees.     Ibid. 

32.  Where  a  deed  of  trust  is  made  to  secure  certain  spec- 
ified debts,  one  of  which  is  tainted   with  usuiy,  and  a  pur- 


TRUSTS  AND  TRUSTEES.  47& 

chaser  buys  at  a  trustee's  sale  for  valuable  consideration,  and 
without  notice  of  the  illegality  of  the  consideration  ot  the 
said  debt :  held,  that  his  title  is  not  affected  thereby.  Mc- 
Neill v.  Riddle,  GG  N.  0.  R.  290. 

33.  If  a  deed  contains  a  declaration  of  trust  in  favor  of 
several  creditors,  and  one  of  the  debts  secured,  is  feigned  or 
ursurious,  and  there  be  no  combination  between  the  credi- 
tors, to  whom  the  true  debts  are  due,  and  the  grantor  or  per- 
son for  whose  benefit  the  feigned  debt  is  inserted,  there  can 
be  no  reason  why  the  declaration  of  trust  in  favor  of  the  true 
debts  may  not  stand,  and  the  feigned  debt  be  treated  as  a 
nullity.     Ibid. 

34.  A  trustee  in  the  execution  of  his  trust,  is  bound  to- 
carry  out  honestly  and  faithfully  the  purposes  contemplated 
by  the  grantor,  to  keep  an  account  of  receipts,  disbursements,. 
&c,  and  be  ready  to  produce  his  accounts,  when  required  by 
the  parties  interested  in  the  estate.  Martin  v.  Wilbourne, 
GG  N.  0.  R.  321. 

35.  Where  the  facts  connected  with  the  management  of  a 
trust  estate,  are  in  dispute,  and  the  rights  of  the  parties  can- 
not be  readily  ascertained  without  an  account,  in  such  case 
the  rule  adopted  by  Courts  of  Equity,  is  a  reference  to  the 
Master,  and  if  there  is  dissatisfaction  with  the  report,  the 
matter  may  be  brought  before  the  court  by  proper  exceptions*. 
11 id. 

3G.  When  the  legal  estate  in  land  is  not  conveyed,  a  trust 
cannot  be  raised  by  parol,  even  founded  on  a  valuable  con- 
sideration, and  though  followed  by  actual  occupancy  and  the 
erection  of  valuable  improvements.  Frey  v.  Ramsour,  GG» 
N.  C.  R.  4GG. 

37.  The  widow  cannot,  as  purchaser  of  land  from  the  as- 
signee of  her  husband,  a  bankrupt,  set  up  title  against  the 
purchaser  under  a  deed  in  trust  executed  by  her  husband 
several  years  prior  to  his  bankruptcy.  Williams  v.  Munroer 
07  K  C  R.  1G4. 

38.  The  negligence  and  unfaithfulness  of  the  trustee  in  a. 
dced-in-trust,  in  which  both  personal  and  real  property  were 
conveyed,  in  not  selling  the  personal  first,  as  required  in  the 
said  deed,  cannot  be  made  a  question  between  the  purchaser 
of  the  land  under  the  deed  in  trust,  and  those  who  succeed 
to  the  rights  of  the  bargainor  in  such  deed.  Their  remedy, 
if  they  have  any,  must  be  pursued  against  the  trustee.    Ibid* 

•'{!).  The  widow  of  a  bargainor,  in  a  deed  in  trust,  executed 
in  1859,  who  was  married  before  the  execution  of  such  deed- 
in-trust  cannot  claim  dower  against  the  purchaser  under  such 
deed.     1  bid. 


480  TRUSTS  AND  TRUSTEES. 

40.  Where  a  testatrix  bequeathed  a  share  of  her  estate 
to  her  executor,  "  In  trust  that  he  shall  put  the  amount  of 
said  share  at  interest  on  good  security,  and  pay  the  annual 
interest  to  my  son  for  the  use  of  his  family,"  &c.,  and  the 
executor  assumed  the  trust  and  invested  the  funds  as  directed 
by  the  will,  collecting  and  paying  the  annual  interest  until 
1862,  when,  without  any  necessity  lor  it,  and  with  a  view 
simply  to  surrender  the  trust,  which  was  not  done,  he  col- 
lected the  amount  due  and  invested  it  in  Confederate  bonds, 
which  were  lost :  held,  that  the  executor  was  chargeable  with 
the  trust  fund,  and  the  annual  interest  arising  thereon.  Jur- 
ney  v.  Coivan,  67  N.  0-  E.  303. 

41.  Where  one  acquires  the  legal  title  to  land,  by  means 
of  an  undertaking  with  the  party  entitled  to  the  equitable 
estate,  that  he  will  hold  the  estate  subject  to  the  equity  ;  a 
refusal  to  carry  out  the  undertaking  is  a  breach  of  confidence, 
and  on  that  ground  the  party  is  converted  into  a  trustee. 
Blount  v.  Carroivay,  67  N-  0.  R  396. 

42.  Therefore,  where  a  power  of  sale  was  given  by  a 
mortgagor  to  the  mortgagee,  in  consideration  of  which  the 
mortgagee  agreed  to  convey  a  portion  of  the  laud  embraced 
in  the  deed,  to  a  trustee,  for  the  benefit  of  the  mortgagor's 
wife  :  It  was  held,  that  this  contract  did  not  come  within  the 
provisions  of  a  statute  of  frauds,  and  that  the  mortgagee 
should  be  held  a  trustee,  and  bound  to  convey,  according  to 
agreement.  In  such  cases  an  agreement  proved  only  by 
parol  will  not  suffice;  there  must  be  facts  dehors.     Ibid. 

43.  Where  a  party  buys  as  agent  of  the  mortgagee,  as  in 
this  case,  and  with  notice  of  the  agreement,  he  will  stand  in 
the  place  of  the  mortgagee,  and  is  effected  by  the  same  equi- 
ties.    Ibid. 

44.  The  court  below  has  no  right  to  entertain  a  petition 
against  a  trustee  on  the  part  of  one  entitled  to  the  sole  and 
separate  use  of  certain  property  during  her  natural  life,  and 
then  to  her  children,  and  praying  to  have  such  property  de- 
livered over  to  the  children,  and  such  proceeding  will  be  dis- 
missed as  on  demurrer.     Walker  v.  Sharpe,  68  N.  0.  R.  363. 

45.  Among  other  things  a  testator  wills  :  "My  executors 
are  fully  empowered  to  sell  the  balance  of  my  estate  or  any 
part  of  it  they  may  think  best  for  the  interest  of  my  family, 
or  retain  the  balance  after  paying  my  just  debts,  should  they 
think  it  more  to  the  interest  and  welfare  of  my  family.  I 
desire  in  either  case  the  property  or  proceeds  shall  be  kept 
together  until  the  oldest  child  shall  arrive  at  a  lawful  age  or 
shall  many,  then  the  whole  of  my  estate  shall  be  divided 


TEUSTS  AND  TRUSTEES.  48L 

"between  my  wife  and  children.  I  desire  further  that  my 
wife  shall  have  at  all  times  sufficient  funds  for  the  mainte- 
nance and  education  of  my  children,  of  principal,  if  the  inter- 
est should  not  be  sufficient  for  that  purpose:"  held,  that  the 
discretion  as  to  amount  of  expenditure  beyond  the  income, 
or  of  the  extent  of  the  encroachment  to  be  made  upon  the 
principal,  must  be  exercised  by  the  executor.  Hinton  v. 
Hinton,  OS  N.  0.  R.  99. 

40.  The  general  rule  is,  that  where  a  discretion  is  given 
to  a  trustee,  the  Court  has  no  jurisdiction  to  control  its  ex- 
ercise, if  the  conduct  of  the  trustee  be  bona  fide.  If,  how- 
ever, the  trustee  acts  mala  fide,  or  refuses  to  exercise  the 
discretion,  the  court  is  obliged  from  necessity  to  interfere  and 
take  upon  itself  the  discretionary  power.     Ibid. 

47.  The  appointment  of  a  trustee  by  a  Judge  of  Probate, 
in  case  where  the  former  trustee  has  died,  removed  from  the 
county,  or  become  incompetent,  cannot  be  done  on  an  ex 
parte  motion  or  petition.  The  application  for  such  appoint- 
ment is  in  the  nature  of  a  civil  action,  aud  all  persous  inter- 
ested must  be  made  parties,  and  have  full  time  aud  oppor- 
tunity to  set  up  their  respective  claims.  Guion  v.  Melvin, 
69  N.  0.  R.  242. 

48.  The  removal  of  a  trustee  at  the  request  of  the  cestui 
que  trust,  and  the  appointment  of  some  other  person  to  sell 
the  lands  conveyed  in  the  deed,  in  which  such  trustee  is  ap- 
pointed, is  purely  a  matter  of  discretion  for  the  Court  below, 
.and  one  which  the  Court  should  not  do  without  good  cause. 
Ward  v.  Dortch,  09  N.  C.  R.  277. 

49.  A  purchase  by  a  man  in  his  own  name  with  funds  in 
his  hands  of  a  fiduciary  nature,  creates  a  resulting  trust  in 
favor  of  those  whose  money  is  employed  in  the  purchase  : 
therefore,  where  land  has  been  purchased  with  partnership 
funds,  although  it  be  conveyed  to  one  partner  only,  yet  it  be- 
comes partnership  property.  King  v.  Weeks,  70  N.  C.  R.  372. 

50.  Where  there  was  an  agreement  between  a  husband 
and  wife  that  if  the  wife  would  join  him  in  a  conveyance  of 
a  certain  tract  of  land  descended  to  the  wife  from  her  father, 
she  should  have  another  tract  in  lieu  of  the  oue  so  conveyed  : 
held,  that  when  the  husband  received  the  money  for  the  land 
conveyed  as  before  set  out,  he  held  it  upou  trust  for  his  wife, 
and  that  his  estate  became  responsible  therefor;  held  further, 
that  the  heirs  at  law  of  the  wife  are  entitled  to  the  land  agreed 
to  be  substituted  for  that  of  the  wife,  free  from  the  incumbrance 
of  the  husband's  debts.     Dula  v.  Young,  70  N.  C.  R.  450. 

See  (Confederate  Money,  10,  11,  12.)    (Deeds — Construc- 
31 


482  USURY. 

tion  of  Deeds,  6,  7,  8,  9 )      (Ejectment — Of  the  title  neces- 
sary to  support  the  action,  9,  10.)     (Emancipation,  15.) 


USURY. 

1.  The  plaintiff,  a  resident  of  this  State,  holding  a  note  as 
guardian,  agaiust  a  person  living  in  South  Carolina,  went  to 
the  house  of  her  debtor  in  1861,  to  collect  the  money,  but 
whilst  there  was  induced  by  this  debtor  to  take  a  new  note, 
upon  which  he  promised  that  the  defendant,  his  brother,  wln> 
resided  in  North  Carolina,  would  become  surety;  and  it  was 
also  agreed  that  South  Carolina  interest,  (7  per  cent )  should 
be  paid.  Afterwards,  in  pursuance  of  this  agreement,  the 
debtor  executed  a  note  in  the  ordinary  form,  without  express 
stipulation  for  interest,  and  the  defendant  also  executed  it  as 
surety,  in  this  State;  upon  its  being  presented  by  the  debtor 
to  the  plaintiff,  in  this  State,  she  reminded  him  of  his  agree- 
ment as  to  interest,  whereupon,  in  order  to  give  effect  to  that,, 
he  prefixed  to  the  note,  ''Pleasant  Valley,  S.  C:"  Suit  hav- 
ing been  brought  against  the  surety,  he  pleaded  Usury: 
Held,  that  as  the  contract  had  been  made  in  South  Carolina,, 
the  stipulation  for  seven  per  cent,  interest  was  not  unlawful. 
Houston  v.  Potts,  04  N.  C.  R.  33. 

2.  Also,  that  the  prefixing  of  the  words  "  Pleasant  Valley,. 
S.  C,"  did  not  materially  alter  the  note.     Ibid. 

3.  In  an  action  upon  a  simple  contract,  usury  may  be- 
given  in  evidence  under  the  general  issue,  treating  the  con- 
tract as  void.  And  though,  in  a  suit  upon  an  usurious  bond,, 
it  is  necessary  to  plead  the  statute,  it  is  not  to  bar  the  action,, 
but  to  put  the  court  in  possession  of  the  facts  whereby  it  is 
shown  that  the  contract  was  wholly  void.  Pond  v.  Home,. 
(55  K.  C.  R.  84. 

4.  A  bond  given  for  money  lent  upon  usurious  interest 
during  the  existence  of  the  statute  against  usury,  Rev.  Code,, 
ch.  114,  was  made  void  ipso  facto  by  that  statute,  aud  was 
not  revived  when  it  was  repealed  by  the  act  of  1866,  ch.  24. 
Pond  v.  Home,  do  N.  C.  R.  34. 

5.  Where  a  note  tainted  with  usury  is  endorsed  to  a  third 
person,  who  purchases  it  for  value,  and  without  notice  of  any 
illegality  attending  the  execution  thereof,  and  the  maker 
gave  to  the  payee  a  mortgage  to  secure  the  payment  of  said 
note:  Held,  that  the  deleuce  of  usury  could  not  avail  the? 
maker,  and  that  the  mortgage  given  to   secure  the  payment 


VAGRANCY.  483 

of  the  principal  and  interest  due  thereon  could  be  enforced. 
Coorv.Spicer,  65  £T  0.  E.  401. 

See  (Pleading — Bill   of  discovery,  1.)     (Pleading — Bill  to 
perpetuate  testimony,  1.)     (Trusts  and  Trustees,  32,  33.) 


VAGRANCY. 

1.  In  the  act  of  18GG,  ch.  42,  (Bat  Rev.  ch.  32,  sec  13!),) 
which  prescribes  "that  if  any  person  who  may  be  able  to  la- 
bor, has  no  apparent  means  of  subsistence,  and  neglects  to 
apply  himself  to  some  honest  occupation  for  the  support  of 
himself  and  bis  family,  if  he  have  one ;  or,  if  any  person  shall 
be  found  spending  his  time  iu  dissipation,  or  gaming,  or  saun- 
tering about  without  employment,  &c,  the  word  "  or,"  in  the 
beginning  of  the  second  paragraph  must  be  construed  "and." 
State  v.  Ouster,  65  N.  C.R.  339 

2.  An  indictment  for  vagrancy,  under  the  act  of  18G6,  ch. 
42,  must  charge  that  the  defendant  was  able  to  labor,  and 
that  he  or  she  neglected  to  apply  him  or  herself  to  some  hon- 
est occupation.  And  in  charging  that  he  or  she  was  endea- 
voring to  maintain  hiraor  herself  by  any  undue  or  unlawful 
means,  it  must  state  what  the  undue  or  unlawful  means  are. 
Ibid. 

3.  A  special  verdict  on  an  indictment  for  vagrancy,  under 
the  act  of  1866,  ch.  42,  which  finds  that  the  defendant  "  Tas 
frequently  seen  sauntering  about  and  endeavoring  to  maintain 
herself  by  whoring,"  entitled  her  to  a  judgment  of  not  guilty, 
as  the  verdict  finds  that  she  was  endeavoring  to  do  something 
wrong,  and  not  that  she  did  it,  and  the  thing  she  was  endea- 
voring to  do,  was  something  immoral  only,  and  not  unlawful. 
Ibid. 

4.  If  there  be  two  statutes  relating  to  the  same  subject, 
and  the  latter  contains  no  repealing  clause,  and  there  is  no 
positive  repugnancy  between  them,  both  may  be  in  force. 
But  if  there  be  such  repugnancy,  the  latter  will  operate  as  a 
repeal  of  the  former.  Hence  the  act  of  186G,  ch.  42,  in  rela- 
tion to  vagrancy  is  a  repeal  of  the  43d  section  of  the  34th 
chapter  of  the  Revised  Code,  which  relates  to  the  same  sub- 
ject, because  the  two  statutes  differ  materially  as  to  the  pun- 
ishment of  the  offence  of  vagrancy,  the  Revised  Code  pre- 
scribing a  fine  and  imprisonment  and  security  for  good  be- 
havior, while  the  act  of  18GG,  eh.  4,  declares  that  the  Court 
may  line,  or  imprison,  or  both,  or  sentence  the  party  to  the 
work-house.     Ibid. 


484  VENDOE  AND  PUECHASEE. 


VENDOR  AND  PURCHASER. 

1.  A  purchaser  for  value  without  notice,  under  a  deed  in 
trust  in  which  some  of  the  debts  secured  are  fictitious,  gets 
a  good  title  even  against  the  creditors  of  the  fraudulent  trus- 
tor.    McCorkle  v.  Earnhardt,  Phil.  L.  E.  300. 

2.  An  order  for  the  specific  performance  of  an  executory 
Contract  for  sale  of  land,  when  applied  for  by  the  vendor,  in- 
cludes :  a  reference  for  an  account  to  fix  the  balance  due  for 
principal  and  interest  of  purchase  money,  and  a  decree  for  a 
sale  of  the  land  to  pay  such  balance,  unless  at  a  day  certain 
the  vendee  pays  into  court  the  said  amount,  aud  will  accept 
the  deed  of  the  vendor,  or  make  objection  to  his  title  and  ask 
for  a  reference  as  to  that.  Meade  v.  Hamlin,  Phil.  Eq.  E. 
128. 

3.  Where,  in  a  suit  for  specific  performance  brought  by 
;a  vendor  of  land,  it  appeared  that  the  property  was  being 

suffered  by  the  vendee,  who  was  in  possession,  to  go  to  waste, 
and  had  thus  already  become  an  insuffieiut  security  for  the 
price  outstanding,  and  the  bargainor  had  made  reasonable 
proposition  for  a  rescission  of  the  contract,  and  an  arbitration 
of  differences :  held,  that  it  was  proper  to  appoint  a  receiver 
of  the  property.     Ibid. 

4.  A  vendor  of  laud  who  retains  the  title  and  allows  the 
vendee  to  go  into  possession,  may  at  any  time  take  posses- 
sion, or  on  notice  given  may  require  those  in  possession  to 
to  pay  the  rents  to  him,  to  be  applied  to  keep  down  the  in- 
terest, and,  if  any  surplus,  to  the  discharge  of  the  principal. 
Hook,  Skinner  &  Co.  v.  Fentress,  Phil.  Eq.  E.  229. 

5.  Where  the  tenant  of  one  who  claimed  under  a  bond  for 
title  from  A,  had,  by  virtue  of  a  sub-lease,  become  entitled 
to  certain  rents  which  he  had  promised  to  transfer  to  the 
obligee  on  the  bond,  in  order  to  be  by  him  applied  in  dis- 
charging the  debt  still  owing  to  A  for  the  purchase  money  : 
held,  that  a  bill  filed  after  such  promise  had  been  made,  would 
not  enable  A  to  intercept  these  rents  and  appropriate  them 
to  a  debt  owing  by  the  tenant  to  himself.     Ibid. 

6.  A  vendor  of  lands  having  delivered  a  deed  in  fee  to 
certain  purchasers,  who  were  partners,  upon  their  executing 
personal  notes  for  the  purchase  money,  a  sealed  instrument 
was  delivered  some  weeks  afterwards  by  the  purchasers  to 
the  vendor,  which  expressed  no  valuable  consideration,  but 
referred  to  the  sale,  and  stated  a  wish  to  secure  the  vendor 
the  payment  of  the  bonds,  and  thereupon  provided  that  in 


VENDOR  AND  PURCHASER.  485 

case  of  failure  by  the  purchasers  to  make  payment  as  their 
notes  fell  due,  the  vendor  "  should  have  a  lien  (in  and  to  such 
tract)  and  to  that  extent  as  will  save  him  harmless :"  held, 
that  there  being  no  valuable  consideration,  the  paper  could 
not,  in  any  event,  be  set  up,  either  as  giving  a  lien  or  as  a 
contract  to  give  a  lien.     Latham  v.  Skinner,  Phil.  Eq.  R.  292. 

7.  Also,  the  partnership  having  been  subsequently  dis- 
solved, that  the  out-going  partner,  who  had  taken  a  bond 
from  his  co-partners  to  indemnify  him  against  the  firm  debts, 
had  thereafter  no  equity  to  subject  the  partnership  funds  to 
the  payment  of  the  debt  to  the  vendor;  and  therefore  that 
the  vendor  had  none  through  him.     Ibid. 

8.  Where  the  vendor  of  land  lets  the  vendee  into  posses- 
sion, reserving  the  title,  he  has  no  claim  upon  the  latter  for 
rents  and  profits,  as  the  interest  upon  the  unpaid  money  is 
in  lieu  of  that.     Pearsall  v.  Mayers,  64  N.  0.  R.  549. 

9.  Where  a  feme  covert  tiled  a  complaint  against  the  pur- 
chasers of  certain  land,  sold  under  execution  as  the  property 
of  her  husband,  and  the  bargainee,  alleging  that  the  land  was 
bought  with  money  arising  from  her  separate  property,  and 
the  deed  was  by  inadvertence  taken  in  the  name  of  her  hus- 
band ;  and  the  said  purchasers  and  their  bargainee  averred 
in  their  answers  that  they  purchased  for  value,  and  without 
notice  of  her  equity,  aud  such  averments  were  not  controvert- 
ed :  held,  that  she  was  not  entitled  to  relief.  Powell  v.  Jones, 
07  N.  0.  R,  12G. 

10.  A  purchaser  of  land  is  never  required  to  accept  a 
doubtful  title.  He  is  not  required  to  do  so,  although  the 
fullest  indemnity  by  way  of  general  warranty  may  be  tender- 
ed.    Batchelor  v.  Macon,  07  N.  0.  R.  181. 

11.  When  an  action  is  brought  by  an  administrator  against 
the  obligors  of  a  bond,  to  recover  the  purchase  money  for  a 
tract  of  hind,  aud  it  appears  from  the  pleadings  that  there  is 
a  question  as  to  the  title  of  the  land  not  "  free  from  doubt," 
and  that  the  "right cannot  be  administered"  without  having 
the  heirs  at  law  and  all  parties  in  interest  before  the  Court, 
the  case,  under  the  present  system,  will  be  remanded,  with  a 
view  of  making  proper  parties.     1  bid. 

12.  The  defence,  of  a  purchaser  "for  value  and  without 
notice,"  can  only  be  made  available  by  one  who  has  acquired 
the  legal  estate.  Therefore,  where  land  was  conveyed  in 
trust,  and  a  person  purchased  from  the  trustor  his  equitable 
estate,  and  paid  the  value,  thereof,  and  afterwards  acquired 
the  legal  estate  without  paying  the  value  of  the  same:  it  was 
held,  that  neither  by  the  purchase  of  the  equity  of  rederap- 


486  VENDOR  AND  PURCHASER. 

tioD  for  value,  nor  of  the  legal  estate  without  value,  could  he 
be  held  a  purchaser  for  value  and  without  notice,  within  the 
sense  of  the  rule.  Goldsborough  v.  Turner,  67  N.  0.  R.  403. 
]  3.  In  an  executory  contract  for  the  sale  of  land,  the 
payment  of  the  purchase  money  constitutes  the  vendee  the 
owner  in  equity,  and  he  has  a  right  to  a  conveyance  from 
every  person  having  the  legal  title  with  notice  of  his  claim. 
Wilcoxon  v.  Galloway,  67  N.  0.  R.  463. 

14.  Therefore,  where  a  person  contracted  to  buy  two 
tracts  of  laud,  represented  iu  the  description  to  contain  one 
hundred  acres,  when,  in  fact  there  were  only  sixty-six  acres, 
and  paid  three-fourths  of  the  purchase  money,  and  the  ven- 
dor afterwards  sold  the  same  land  to  a  third  person,  who  had 
notice  of  the  previous  contract,  and  became  insolvent:  It 
was  held,  fhat  a  deficiency  of  one-third  of  the  number  of 
acres  was  a  material  matter,  and  that  the  purchaser  was  en- 
titled against  the  vendor,  and  those  claiming  under  him, 
with  notice,  to  a  conveyance  and  an  abatement  of  the  price. 
I  hid. 

15.  It  is  not  a  general  rule  that  the  abatement  shall  be 
in  the  proportion  of  the  deficient  quantity  to  the  quantity 
purchased.  Improvements,  natural  advantages,  &c,  are  to 
be  considered.  In  such  cases  the  only  mode  of  estimating 
the  abatement  is  by  a  reference,  to  ascertain  how  much  more 
was  given  by  reason  of  the  supposed  additional  quantity. 
Ibid. 

16.  A  paper-writing,  not  under  seal  and  unregistered, 
which  has  been  surrendered  to  tbe  grantor  by  the  alleged 
grantee,  prevents  any  title  resting  in  the  grantee.  And  such 
paper  writing,  passing  no  title,  could  do  no  more  than  raise 
an  equity  which  the  grantee  had  a  right  to  surrender,  unless 
it  was  done  to  defraud  creditors.  Waugh  v.  Blevins,  68  N. 
C.  R.  167. 

17.  AVhen  land  is  sold  and  the  title  is  retained  by  the 
vendor  until  the  payment  of  the  promissory  notes  given  by 
the  vendee  to  secure  the  purchase  money,  and  these  notes 
are  assigned  by  the  vendor  with  the  knowledge  and  consent 
of  the  vendee,  the  assignee  will  have  a  right  to  have  the 
notes  paid  out  of  the  laud  in  preference  to  any  claims  which 
may  have  been  acquired  by  other  persons  subsequent  to  the 
time  when  the  sale  was  made  and  the  notes  were  given. 
Hadleij  v.  Nash,  69  N.  0.  R.  J  62. 

See  (Action  on  the  case- -For  deceit.)  (Bond — Bond  for 
title.)  (Ejectment — of  the  title  necessary  to  support  the 
action.  1,  2,  3,  4.) 


WARRANTY.  487 


WARRANTY. 

1.  A  bill  of  sale  in  the  following  words :  Eeceived  of  M. 
&  H.  $  2,000  for  a  negro  boy  named  Allen,  26  years  old,  said 
negro  is  warranted  sound  in  mind  and  in  body  and  the  title 
good :  held  to  contain  no  warranty  as  to  age.  March  v. 
Phelps,  Phil  L.  R.  500. 

2.  In  a  written  bill  of  sale  which  contains  no  warranty  of 
title,  none  can  be  implied  or  proved.  Sparks  v.  Messick,  65 
N.  C.  R.  440. 

3.  Although  there  seems  to  be  an  implied  warranty  of 
title  in  the  sale  of  personalty,  made  by  parol,  yet  no  such 
rule  is  applicable  to  sales  made  by  executors,  administrators, 
&c.     Ibid. 

4.  Where  there  is  a  warranty  of  title  to  personalty  which 
is  broken,  the  vendee  can  take  no  advantage  thereof  to  have 
the  contract  rescinded,  and  refuse  payment  of  the  purchase 
money,  when  he  has  kept  the  property  lor  many  years,  and 
had  the  benefit  thereof,  until  it  is  destroyed.     1  hid. 

5.  In  an  action  for  deceit  and  false  warranty,  after  evi- 
dence by  plaintiff  that  he  discovered  the  alleged  unsoundness 
(glanders)  early  next  morning  after  the  sale,  it  is  competent, 
by  way  of  impeaching  such  testimony,  for  the  defendant  to 
prove  by  a  witness  that  he  and  plaintiff  lived  in  a  very  small 
village,  [Boone]  and  within  fifty  yards  of  each  other,  and 
that  he  (witness)  did  not  hear  of  the  alleged  unsoundness 
until  some  two  weeks  after  the  sale.  Horton  v.  Green,  66 
BT.  O.  B.  506. 

6.  Evidence,  by  way  of  dialogue,  in  haec  verba: — Plain- 
tiff:— "  What  will  you  take  for  your  mule?"  Defendant: — 
"  One  hundred  and  twenty-five  dollars."  Plaintiff : — "  I  can't 
give  8125,  but  if  it  is  all  sound  and  right  I  will  give  you 
$100."  Defendant : — "  It  is  all  sound  and  right,  and  I  will 
take  $100  if  you  will  pay  the  money  down."  Plaintiff: — "I 
cauuot  pay  the  money  all  down,  but  will  pay  $25  down  and 
give  my  note  and  security  for  the  balance."  Defendant : — 
"  I  agree ;  here's  your  mule." — Does  not  per  se  constitute  a 
warranty,  but  is  only  evidence  for  the  jury,  to  be  weighed  by 
them  in  connection  with  the  surrounding  circumstances  of 
the  transaction  ;  and  among  these  circumstances  may  be  con- 
sidered the  tone,  looks,  gestures  and  the  whole  manner  of  the 
transaction.    Jbid. 

7.  The  doctrine  upon  special  contracts  of  personalty  and 
the  point  whether  the  question  of  warranty  is  to  be  decided 


488         WARRANTY.— WASTE—  WIDOW— I. 

by  the  court  or  left  to  the  jury  with  the  proper  instructions^ 
has  been  too  long  and  too  thoroughly  settled  in  this  State  to- 
be  now  overturned  by  decisions  in  other  courts,  and  this  court 
is  satisfied  with  the  reasoning  and  adheres  to  the  former  de- 
cisions.    Ibid. 

8.  Where  a  father  having  a  life  estate  only,  makes  a  deed 
in  fee  simple  for  land,  with  warranty ;  his  heir,  with  or  with- 
out assets,  is  rebutted  by  the  warranty,  except,  in  cases 
where  the  rule  of  the  common  law  is  changed  by  statute,  or 
where  the  heir  can  connect  himself  with  the  outstanding  re- 
mainder or  reversion.     Southerland  v.  Stout,  08  N.  0.  R.  44G. 

9.  If  a  person  agree  to  purchase  artitles  to  be  delivered 
by  a  certain  time,  and  which  are  promised  to  be  of  a  certain 
good  quality,  aud  after  payment  for  the  same,  and  after  it  is 
too  late  to  return  them  without  prejudice  to  himself,  he  finds 
out  they  are  of  inferior  quality,  he  may  sustain  an  action  to 
recover  damages  on  account  of  the  inferior  quality  of  the 
articles,  although  he  has  taken  and  used  them.  Cox  v.  Long, 
69  N.  0.  R.  7. 


WASTE- 

SemMc,  That,  in  analogy  to  the  case  of  mines  already  open- 
ed, it  is  not  waste  for  an  occupant  to  continue  to  make  brick 
on  premises  used  for  that  purpose  when  the  occupancy  com- 
menced.    Sledge  v.  Blum,  G3  N.  0.  R.  374. 


WIDOW. 

I.     Of  h3r  dower.  ]      II.     Year's  provision. 

I.     OF  HER  DOWER. 

1.  The  fact,  that  a  widow  elects  to  take  under  a  will,  does 
not  constitute  her  a  purchaser  as  regards  the  legacies  there- 
in.    MitcMner  v.  Atkinson,  Phil.  Eq.  R  23. 

2.  The  distinction  between  Dower  in  England,  and  the 
same  right  in  North  Carolina,  stated  by  Pearson,  0.  J., 
in  reference  to  the  above  doctrine.     Ibid. 

3.  A  widow  who  takes  under  a  Will  in  North  Carolina  is 
barred  of  dower  in  the  lands  included  in  such  will  because  of 
lier  election,  and  not  under  an  idea  that  she  has  received  a 
consideration  therefor.     Ibid. 


WIDOW— I.  489 

4.  The  act  of  1784  (E,  C,  c.  118,  s.  1;)  giving  widows  of 
testators  six  months  in  which  to  dissent  from  wills,  is  not  a 
statute  conferring  a  right  of  dower,  but  a  '  statute  of  limita- 
tions '  upon  that  right,  as  it  existed  at  common  law.     Bin- 
ton  v.  Hinton,  Phil.  L.  E.  410. 

5.  Eeal  estate  belonging  to  a  partnership  is  subject  to 
dower  in  favor  of  a  widow  of  one  of  the  partners  only  so  far 
as  a  surplus  may  be  left  after  paying  the  partnership  debts. 
Stroud  v.  Stroud,  Phil.  L.  E.  525. 

6.  A  widow  is  entitled  for  dower  to  a  life  estate  in  one- 
third  of  the  full  value  of  any  land  in  which  her  husband  had 
an  equitable  estate,  subject  to  valid  incumbrances  thereon  •> 
and  so,  has  a  right  to  require  that  the  remaining  two-thirds, 
as  well  as  the  reversion  in  the  one-third  assigned  to  her,  shall 
be  applied  to  the  payment  of  any  purchase  money  still  due 
for  said  land,  in  exoneration  of  her  dower ;  being  liable  for 
such  purchase  money  only  after  these  funds  have  been  ex- 
hausted.    Caroon  v.  Cooper,  63  N.  0.  E.  386. 

7.  Where  the  wife's  right  to  dower  in  all  the  lands  of  which 
her  husband  was  seized  during  coveture,  by  virtue  of  the  act 
of  March  2d,  1867,  had  attached  before  the  execution  of  a 
deed  of  trust:  held,  that,  as  the  bargainor  took  by  act  of  the 
husband  and  claimed  under  him,  the  land  was  subject  to  the 
wife's  right  of  dower,  even  although  the  deed  was  made  to 
secure  a  pre-existing  debt.     Rose  v.  Rose,  63  N.  0.  E.  391. 

8.  If  the  bargainor  had  come  in  by  act  of  law,  as  purchaser 
at  sheriff's  sale  under  an  execution  against  the.  husband,  the 
question  of  the  constitutionality  of  the  act  of  March  2d,  1867, 
in  regard  to  pre-existing  debts  might  have  been  raised.   Ibid. 

9.  The  sale  spoken  of  in  the  Ordinance  of  March  5th,  1868- 
(c.  40,  s.  2)  is  a  sale  for  the  benefit  of  the  creditors  or  heirs 
of  the  testator,  and  not  one  by  the  widow  for  the  benefit  of 
her  creditors.     Ibid. 

10.  Iu  a  case  where  it  appeared  that  the  widow,  as  general 
devisee  under  her  husband's  will,  had  conveyed  a  large  part 
of  the  land  in  trust  for  payment  of  her  own  debts,  and  after- 
wards, under  the  Ordinance  above  mentioned,  had  dissented 
and  was  seeking  to  have  dower  therein:  held,  that  she  was 
entitled  to  dower  ;  and  also,  that  the  trustee  in  the  deed  was 
not  a  necessary  party  to  her  petition.     Ibid. 

11.  A  widow  who  is  entitled  to  dower,  can  ordinarily  ex- 
ercise no  right  over  the  land  until  her  dower  has  been  assign- 
ed.    Webb  v.  Royle,  63  N.  C.  It.  271. 

12.  A  creditor  of  the  deceased  had  a  light  under  the  form- 
er practice,  to  come  in  and  be  made  a  party  defendant,  for 


490  WIDOW— I. 

the  purpose  of  excepting  to  an  admeasurement  of  dower  in 
the  course  of  a  petition  by  the  widow.  Moore,  ex  parte,  64 
N.  C.  R.  90. 

13.  Arguendo:  This  is  so  still,  under  the  act  regulating 
Special  proceedings.     Ibid. 

14.  In  a  petition  for  dower,  in  the  County  Court,  judg- 
ment was  given  that  the  petitioner  was  entitled,  and  au  order 
made  for  a  jury  to  allot  it ;  upon  the  return  of  their  report  at 
the  next  term,  a  person  who  claimed  to  be  true  heir  of  the 
deceased,  came  in,  and  suggested  that  there  had  been  no 
marriage  between  the  latter  and  the  petitioner;  an  issue  was 
made  up  accordingly,  and  at  an  ensuing  term  it  was  tried,  and 
a  verdict  given  in  accordance  with  the  suggestion  ;  upon  the 
petitioner's  appealing  to  the  Superior  Court,  she  moved  that 
the  report  be  confirmed ;  this  the  Judge  declined  to  do,  and 
ordered  another  issue  to  be  tried,  and  petitioner  appealed 
again  :  held,  that  the  alleged  heir  could  not  intervene  to  have 
the  judgment  for  dower  set  aside,  as  he  was  no  party  to  the 
proceedings.  That  such  intervention  could  not,  under  the 
circumstances,  be  supported  as  an  application  by  one  aggrieved 
by  the  particular  admeasurement,  to  have  it  set  aside.  Low- 
ery  v.  Lowery,  64  1ST.  C.  R.  110. 

15.  When,  for  payment  of  a  deceased  husband's  debts,  it 
becomes  necessary  to  resort  to  lauds  devised  by  him  to  his 
wife,  she  is  remitted  to  her  right  of  dower,  which,  as  in  other 
cases,  is  not  subject  to  those  debts  during  her  life.  Avery, 
Ex  parte,  64  N.  C.  R.  110. 

16.  A  petition  for  dower  may  be  Ex  parte,  in  the  names 
of  the  widow  and  the  heirs,  but  if  the  widow  be  guardian  of 
the  heirs,  and  the  estate  be  insolvent,  the  heirs  should  be 
made  parties  defendant,  with  a  properly  constituted  guardian 
ad  litem;  and  the  creditors  also  are  to  be  allowed  to  come  in 
if  they  choose,  and  make  themselves  defendants.     Ibid. 

17.  One  who  claims  the  land  under  a  conveyance  made 
by  the  deceased,  has  a  right  to  intervene  in  proceedings  for 
dower  in  such  land,  instituted  by  the  widow  against  the  heirs 
of  the  deceased.  (iVctof  1868-'69,  ch.  93,  sec.  41.)  Carney 
v.  Whitehurst,  64  1ST.  C.  R.  426. 

18.  Land  having  been  devised  charged  with  the  payment 
of  a  sum  of  money  to  a  minor,  the  devisee  also  being  appoint- 
ed guardian  of  the  minor:  held,  that  the  tact  that  the  guard- 
ian charged  himself  with  such  money  in  his  returns  to  Court, 
was  no  discharge  of  the  lands.  Smith  v.  Gilmer,  64  N".  C.  R. 
546. 

19.  In  such  case  the  widow  of  the  devisee,  before  she  can 


WIDOW— I.  491 

be  called  on  to  contribute,  is  entitled  (in  aid  of  dower)  to  have 
the  whole  of  the  personal  estate  of  the  deceased,  and,  after 
that,  all  of  his  real  estate  not  included  in  her  dower  interest, 
applied  to  the  discharge  of  the  debt.     Ibid. 

20.  When  A  dies  seized  of  land,  leaving  a  widow,  and  B, 
the  son  of  A,  occupies  the  land  jointly  with  A's  widow,  and 
thereafter  B  dies,  when  the  widow  of  A  applies  and  obtains 
dower,  the  widow  of  B  cannot  be  endowed  of  such  land  after 
the  death  of  the  widow  of  A.  Iieitzel  v.  Eckard,  65  N.  0. 
E.  073. 

21.  Previous  to  the  statutes  of  1806-' 7,  and  1 868-'9,  pur- 
posing to  restore  to  married  women  the  common-law  right 
of  dower,  the  wife  had  only  an  inchoate  right  of  dower,  in  the 
lands  of  her  husband,  subject  to  be  defeated  at  any  time,  by 
the  husband's  conveyance.  Sutton  v.  Askew,  66  N-  0.  E.  172. 

22.  When  land  was  acquired,  and  a  marriage  was  con- 
tracted, previous  to  the  statutes  aforesaid:  held,  that  these 
statutes  cannot  affect  the  rights  of  the  husband,  nor  restrict 
his  power  of  alienation,  nor  confer  upon  tue  wife  any  right  of 
dower,  which  she  did  not  have  before.     Ibid. 

23.  Whether  it  is  competent  tor  the  General  Assembly 
to  give  a  married  woman  a  right  of  dower  in  land  acquired 
after  the  passage  of  the  statutes  referred  to,  although  the 
marriage  took  place  before  that  time,  quere  f    Ibid. 

24.  An  agreement  to  pay  a  married  woman  a  certain  sum 
of  money  for  her  right  of  dower  in  the  land  of  her  husbaud, 
when  the  land  was  acquired,  and  the  marriage  was  contracted 
before  March  2d,  1867,  is  void  against  creditors,  for  want  of 
consideration.     Ibid. 

25.  It  would  seem  that  before  a  married  woman  can  set 
up  her  consent,  as  a  consideration  to  support  a  contract,  to 
give  her  a  part  of  the  purchase  money  for  a  tract  of  land,  sold 
by  her  husband,  it  ought  to  appear  that  she  has  released  her 
right  of  dower  or  covenanted  against  incumbrances;  and, 
quere,  whether,  in  any  case,  it  could  depend  upon  parol  evi- 
dence, and  whether  the  contract  must  not  be  set  out  in  the 
deed,  and  appear  to  be  fair  and  reasonable.     Ibid. 

26.  Where  a  contract  was  made  for  the  sale  of  land,  and 
a  bond  was  given  to  make  title  upon  the  payment  of  the  pur- 
chase-money, and  a  portion  of  the  purchase-money  being  un- 
paid, an  action  was  brought  by  the  vendor  against  the  vendee, 
to  sell  the  lands  for  payment  of  the  balance  due:  held,  that 
in  such  action,  the  wife  of  the  vendee  was  not  a  proper  party, 
if  the  marriage  took  place  prior  to  March  2d,  1867 ;  aliter, 


492  WIDOW— I. 

if  the  marriage  took  place  subsequent  to  that  time.     Bunting 
v.  Foy,  66  N.  0.  E.  192. 

27.  The  wife  of  a  purchaser,  who  holds  lands  under  a  bond 
for  title,  has  a  contingent  right  of  dower  to  the  extent  of  the 
payments  made  by  her  husband.    laid. 

28.  A  claim  for  dower,  under  the  Act  of  1867,  set  up  in 
1872,  the  husband  being  still  alive,  cannot  be  sustained. 
Felton  v.  Elliott,  66  N.  0.  R.  195. 

29.  The  act  of  March  2d,  1867,  entitled  an  act  restoring 
married  women  their  common  law  dower,  having  been  repeal- 
ed by  the  act  of  1868-69,  a  feme  covert  cannot  set  up  a  claim 
for  a  dower  during  the  life-time  of  her  husband.  Hughes  v. 
Meritt,  67  K  0.  R.  386. 

30.  The  assignee  of  a  widow,  entitled  to  103  acres  of  land 
as  dower,  has  a  right  to  clear  10  acres  of  such  dower  land, 
where  the  clearing  and  the  timber  thereon  is  necessary  for 
the  proper  cultivation  of  the  remainder,  and  also  necessary 
for  the  support  of  the  widow  and  her  children.  The  order 
restraining  such  clearing  was  properly  vacated.  Joyner  v. 
Speed,  68  K  0.  R.  236. 

31,.  The  widow  of  a  mortgagor,  as  against  the  legatees  and 
next  of  kin  as  well  as  against  the  heirs  and  devisees  of  her  de- 
ceased husband,  has  a  right  to  have  the  mortgaged  land  ex- 
honorated  from  the  mortgaged  debts,  but  as  against  his  oth- 
er creditors  she  has  no  such  right.  As  to  them,  she  has  only 
the  right  to  have  the  two-thirds  of  the  land  not  embraced  in 
the  dower,  and  the  reversion  of  the  dower  sold,  and  the  pro- 
ceeds applied  to  the  payment  of  the  mortgage  debt,  and  to 
have  the  residue  of  that  debt,  if  any,  paid  rateably  with  the 
other  debts  of  the  deceased  out  of  the  personal  assets,  and  if 
there  still  be  any  part  of  the  mortgage  debt  unpaid,  it  will  be 
a  charge  on  the  dower.  Creecy  v.  Pearoe,  Adm'r,  69  1ST.  0. 
R.  67. 

32.  The  widow,  being  but  the  representative  of  her  hus- 
band, who  has  no  exclusive  or  superior  right  to  any  particular 
portion  of  the  land  to  be  divided,  has  no  right  to  have  any 
particular  part  of  such  land  assigned  to  her  as  dower.  Gre- 
gory v.  Gregory,  69  N.  0.  R.  522. 

33.  A,  B  and  0  are  tenants  in  common  of  a  tract  of  land; 
0  dies  in  debt,  and  his  widow  becomes  his  administratrix.  A 
and  B  filed  their  petition  for  a  partition  of  the  land  into  three 
parts :  held,  that  the  widow  of  0,  being  entitled  to  dower, 
and  also  as  representing  the  creditors  of  0,  was  a  necessary 
party  to  such  petition,  both  as  widow  and  as  administratrix. 
Ibid. 


WIDOW— I.— II  -WILLS— I.  493 

34  Where  a  tract  of  laud  upon  wbicb  a  widow  bad  dower 
was  sold,  for  the  purpose  of  making  assets  to  pay  debts  by 
tbe  administrator  of  tbe  husband  in  two  separate  parts,  and 
she  bid  oft  both  parts  at  unequal  prices,  and  the  sale  was  set 
aside  as  to  the  cheaper  part:  it  teas  held,  that  she  had  the 
ricrht  to  have  the  sale  set  aside  as  to  the  other  part  also, 
where  it  appeared  that  she  would  not  have  purchased  the 
former  part  unless  she  could  have  got  the  latter  with  it. 
Davis  v.  Cureton,  70  N.  0.  R.  607. 

See  (Constitution,  22,  GG  )     (Deed— Of  the  operation  af  a 
deed,  &c,  3 )     (Trusts  and  Trustees,  3r>.) 

II.    YEAR'S  PROVISION. 

1.  It  is  not  the  lapse  of  time  since  the  death  of  the  hus- 
band, but  such  lapse  since  the  taking  out  of  administration, 
that  affects  the  right  of  the  widow  to  a  year's  provision. 
Roqers,  JEx  parte,  63  N.  0.  R.  110. 

2.  Therefore,  where  the  husbaud  died  in  June,  lbfaO,  ana 
administration  was  not  taken  out  till  February  Term,  18G8  : 
held,  that  the  widow  was  entitled  to  such  provision  under  a 
petition  filed  at  that  term.     Ibid. 

3.  If  a  widow  who  has  petitioned  for  a  year's  allowance 
die  after  the  Commissioners  have  made  the  allotment  and 
before  the  confirmation  of  their  report  by  the  Court,  the  peti- 
tion abates,  and  cannot  be  revived  by  her  administrator. 
Dunn,  JEx  parte,  63  N.  C.  R.  137. 


I.     Attested  wills. 
II.     Holograph  wills. 


WILLS. 

III.     Nuncupative  wills. 

I.     ATTESTED  WILLS. 


1.  Certain  letters  of  a  testamentary  character,  written  and 
signed  bv  the  testator,  dealing  with  property  contained  in  the 
principal  paper  propounded,  and  referred  to  therein  as  giving 
further  directions,  having  beeu  rejected  from  probate:  held, 
that  such  rejection  did  not  in  the  view  of  a  court  of  probate 
render  such  principal  paper  "unfinished,"  and  void.  Wood 
v.  Sawyer,  Phil.  L.  R.  251. 

2.  When  a  paper- writing,  purporting  to  be  a  will  and  exe- 
cuted with  the  requisite  formalities  by  a  person  competent  to 


494  WILLS— I— II. 

make  a  will,  is  offered  for  probate,  it  must  be  established 
without  regard  to  the  construction  of  its  contents,  and  with* 
out  consideration  of  any  trusts  declared  therein,  or  resulting 
to  the  heir.     IMcl. 

3.  Where  a  testator  leaves  two  wills,  that  of  later  date 
not  expressly  revoking  the  former,  and  the  former  is  pro- 
pounded for  probate :  held,  to  be  proper  for  the  Court  to  leave 
to  the  jury  the  question,  whether  it  was  the  intention  of  the 
testator  that  the  former  paper-wriiing  should  be  his  will. 
Fleming  v.  Fleming,  63  N.  0.  R.  209. 

4.  A  paper-writing,  written  in  any  form,  whether  as  a 
deed  or  girt,  deed  poll  or  indenture,  may  be  propounded  as  a 
will,  and  operates  as  such  if  it  appears  to  have  been  the  pur- 
pose of  the  maker  of  such  instrument  that  it  should  take  ef- 
fect after  his  death.  The  words,  ''I  give  at  my  death,"  are 
operative  words,  and  evidence  testamentary  intent.  Belcher's 
Will,  66  N.  C  E.  51. 

II.     HOLOGRAPH  WILLS. 

1.  That  a  paper-writing,  propounded  as  a  will,  has  upon 
it  an  attestation  clause  unwitnessed,  will  not  prevent  its  being 
established  as  a  holograph.     Hill  v.  Bell,  Phil.  L.  E.  122. 

2.  The  placing  ot  a  holograph  in  a  trunk,  left  for  safekeep- 
ing with  a  friend  and  having  in  it  the  larger  part  of  the  valua- 
ble papers  and  money  of  the  deceased,  will  satisfy  the  re- 
quirements of  the  statute  upon  the  question  ot  deposit.  Ibid. 

3.  A  script  purporting  to  be  a  holograph  will,  was  found 
in  a  drawer  inside  of  a  desk,  between  a  bag  of  gold  coin  and 
a  bag  of  silver  coin  ;  and  immediately  above  the  drawer,  in 
pigeon-holes,  were  found  notes,  bonds  and  other  valuable  pa- 
pers, arranged  in  files ;  the  drawer  and  pigeon-holes  being 
secured  by  the  same  door  and  lock :  held,  that  the  script  was 
properly  deposited,  under  the  act  defining  the  requisites  of 
holograph  wills.     Hughes  v.  Smith,  64  N.  0.  E.  493. 

4.  The  change  in  that  act  as  found  in  the  Revised  Stat- 
utes, by  which,  as  reproduced  in  the  Revised  Code,  "or"  has 
become  "and,"  does  not  affect  the  construction  previously 
given.     Ibid. 

5.  Where  a  script,  alleged  ta  be  a  halograph  will,  was 
found  in  a  trunk  of  the  decedent,  in  which  he  had  valuable 
papers,  aud  it  appeared  that  the  decedent  had  also  a  tin  box, 
deposited  in  bank,  in  which  he  had  other  papers  intrinsically 
of  more  value  than  were  those  in  the  trunk  :  held,  to  be  error 
in  the  Judge,  on  the  trial  of  an  issue,  devisavit  vel  non,  to 


WILLS— II— III— WITNESS.  495 

charge  the  jury,  in  relation  to  there  being  two  proper  deposi- 
tories of  a  holograph  will  under  the  statute,  that  '*  to  consti- 
tute  such,  he  (the  Judge)  was  satisfied  there  must  be  a  some- 
what equal  division  of  the  valuable  papers  and  effects  between 
the  two  places  claimed  as  legal  depositories.  Winstead  v. 
Bowman,  08  N.  C.  R.  170. 

G.  The  phrase,  "among  the  valuable  papers  and  effects 
of,"  &c,  used  iu  sec.  435  (2)  Code  of  Civil  Procedure,  does 
not  necessarily  and  without  exception  meau  among  the  most 
valuable  papers,  &c.    Ibid. 

7.  Valuable  papers  consist  of  such  as  are  regarded  by  a 
decedent  as  worthy  of  preservation,  and  therefore  iu  his  esti- 
mation, of  some  value;  dependiug  much  upon  the  condition 
and  business  and  habits  of  the  decedent  in  respect  to  keeping 
his  valuable  papers.    Ibid. 

III.     NUNCUPATIVE  WILLS. 

1  Where  a  person,  being  in  extremis,  and  conscious  of  it, 
— sent  for  a  friend  with  whom  he  had  often  talked  on  the  sub- 
ject of  a  will, — aud  told  him  what  disposition  he  wanted  to 
make  of  his  property,  and  then  such  friend  replied  that  if  he 
wanted  to  do  anything  of  that  kind  he  had  better  have  some 
other  person  in  the  room,  and  thereupon  the  speaker  went 
out  and  brought  in  another  person,  and  in  the  presence  of  the 
sick  man  repeated  the  proposed  disposition  of  the  property,, 
to  which  the  latter  assented :  held,  to  be  a  sufficient  rogatlo 
test  him  to  satisfy  the  requirements  of  a  nuncupative  will. 
Smith  v.  Smith,  03  N.  0.  R  637. 

2.  Land  cannot  pass  by  a  nuncupative  will.  "Smithdeal  v. 
Smith,  04  N.  C.  R.  52. 


WITNESS. 

One  summoned  as  an  expert  in  a  criminal  action,  is  en- 
titled to  extra  compensation,  under  the  Act  of  1870-71,  eh. 
130,  sec.  133.     State  v.  Dollar,  00  N.  C.  R.  020. 

See  (Evidence.) 


ERRATA  AND  ADDENDA. 


The  cases  marked  "Errata"  in  the  table  of  cases  were  by 
mistake  omitted  in  the  body  of  the  Digest  and  are  inserted 
here. 

Amendments  and  Continuances. — All  questions  of 
practice  and  procedure  as  to  amendments  and  continuances 
arising  on  a  trial  in  the  court  below,  are  in  the  discretion  of 
the  presiding  Judge,  from  whose  judgment  thereon  there  is 
no  appeal.  0.  0.  P.  133.  Austin  v.  Clarke,  70  K  C.  R.458. 

Appeals — Practice  on  Appeals. — 1.  A  judgment 
appealed  from,  must  be  affirmed  in  this  court,  no  error  being 
assigned  on  the  record,  in  cases  where  the  statement  as  pre- 
pared by  the  appellant  has  been  returned  with  objections, 
and  the  appellant  had  failed  to  apply  to  the  Judge  below,  to 
give  the  parties  a  day  to  settle  the  case,  as  prescribed  by 
sec.  301,  0.  0.  P.     KirJcman  v.  Dixon,  66  K  0.  R.  406. 

2.  In  such  case,  upon  proper  affidavit,  an  order  will  be 
made  to  the  Judge  to  certify  a  statement,  but  if  the  Judge 
returns  to  such  order  that  no  application  to  settle  the  case 
had  been  made,  the  appellant  is  without  remedy.     Ibid. 

3.  Whether  relief  in  such  case  is  obtainable  under  sec- 
tion 133  0.  0.  P.  quaere  1     Ibid. 

Bond — Alteration  of. — The  addition  of  ihe  words  "  in 
specie"  after  the  word  "  dollars"  in  a  sealed  note  made  Nov. 
2nd,  1865,  promising  to  pay  "one  hundred  and  twenty  five 
dollars"  is  a  material  alteration ;  and  when  done  by  the  prin- 
cipal therein,  with  the  concurrence  of  the  obligee,  in  the  ab- 
sence of  the  surety  and  without  his  consent,  avails  such  note 
as  to  the  said  surety.     Darwin  v.  Rippcy,  63  N.  0.  R.  31  ^. 

Boundary — License. — Where  by  the  consent  of  the 
owners,  a  line  is  run  between  two  contiguous  tracts,  such 
consent  is  a  mutual  license  to  both  parties  to  treat  such 
line  as  the  true  boundary ;  and  neither  party  can  hold  the 
other  as  a  trespasser,  without  a  revocation  of  that  license. 
Palmer  v.  Anderson,  63  N.  C.  R.  365. 

Constitution — Return  op  Summons  before  Jus- 
tices.—The  1st  section  of  the  Act  of  1868-'9,  chap.  86, 
requiring  writs  of  summons  before  Justices  upon  contracts 
entered  into  before  May  1st,  1865,  to  be  returnable  at  the 
pud  of  ninety  days,  is  unconstitutional  and  void,  as  plainly 


498  EEEATA  AND  ADDENDA. 

intending  to  binder  a  certain  class  of  creditors,  and  therefore 
impairing  a  certain  class  of  contracts.  Johnson  v.  Winsloiv, 
64  N.  0.  E.  27. 

Constitution — Stay  Law. — The  provisions  in  the  mag- 
istrate's stay  law  of  March  22d,  18G9,  sec.  8,  which  allows 
justices  to  set  aside  judgments,  executions,  &c,  destroys 
vested  rights,  and  is,  therefore,  unconstitutional  and  void. 
Miller  v.  Gibson,  63  N.  0.  E.  635. 

Costs — Security  for  Costs. — 1.  Questions  of  costs  and 
security  for  the  prosecution  of  suits  should,  as  a  general  rule, 
be  left  to  the  presiding  Judge  in  the  court  below,  yet  a  de- 
fendant is  entitled  to  invoke  the  supervisory  power  of  the 
Supreme  Court  to  protect  his  rights  in  regard  to  the  costs 
of  litigation.     Osborne  v.  Henry,  (56  N.  C.  E.  354. 

2.  When  an  assignee  in  bankruptcy  proposes  to  take  the 
place  of  the  original  plaintiff  in  a  suit,  he  ought  to  be  re- 
quired to  give  an  undertaking  or  make  a  money  deposit  out 
of  the  fund,  sufficient  to  cover  the  costs.     Ibid. 

3.  Whether  an  assignee  in  bankruptcy  can  sue  in  forma 
pauperis  quaere  f  It  would  seem  to  fall  under  the  principle, 
that  executors  and  administrators  are  not  embraced  within 
the  provisions  of  law  alllwing  persons  to  sue  in  forma  pau- 
peris.    Ibid. 

Decree  of  the  Supreme  Court — Petition  to  re- 
fer— Eeference. — 1.  A  petition  to  rehear  a  decree  of  the 
Supreme  Court  when  the  error  complained  of  is  one  of  fact 
committed  in  making  an  interlocutory  order  of  reference, 
and  in  confirming  the  report  made  by  the  commissioner,  is 
not  strictly  a  petition  to  re-hear,  but  may  be  treated  as  a 
motion  to  set  aside  the  order  of  reference  and  the  order  con- 
firming the  report,  and  the  sale  made  pursuant  thereto. 
Eason  v.  Billups,  65  N.  C.  E.  216. 

2.  It  is  error  in  an  order  to  refer  the  matters  in  contro- 
versy in  a  suit  without  the  consent  of  the  parties,  to  the  at- 
torney of  one  of  them,  it  being  the  same  as  if  the  reference 
were  made  to  the  party  himself.     Ibid. 

Devise — Trust  Fund. — Where  land  was  devised  by  a 
testator  to  his  executors  in  trust  for  his  widow  and  certain  of 
his  issue  during  the  life  of  the  widow,  and  then  over  to  such 
issue,  with  directions  to  cultivate  the  land  and  keep  an  ac- 
count of  produce,  sales  and  outlays,  and  after  supporting  the 
widow  aud  children,  divide  the  surplus ;  held,  that  the  land 
and  produce  are  chargeable,  as  a  trust  fund  for  liabilities  in- 
curred by  one  of  the  executors  in  cultivating  the  land,  and 
©an  be  subjected  by  a  civil  action.  Cannon  v.  Eobinson,  67 
N.  C.  E.  53. 


ERRATA  AND  ADDENDA.  499 

Ejectment — Title. — In  an  action  of  ejectment  the  only 
questions  which  arise  in  regard  to  the  title  are  as  to  its  Valid- 
ity at  law.     Davis  v.  Atkinson,  63  N.  0.  R.  210. 

Judgment — Vacating  a  Judgment. — A  Judge  of  the 
Superior  Court  has  no  power,  upon  motion,  to  set  aside  and 
vacate  a  judgment  of  the  former  County  Courts,  rendered  iu 
a  matter,  touching  the  administration  of  a  dead  man's  estate. 
Such  motion  should  be  made  before  the  Clerk,  as  Judge  of 
Probate      Westcott  v.  Hewlett,  67  N.  C.  R.  191. 

Judgment  by  Default — Effect  of. — A  judgment 
by  default  in  au  action  for  goods  sold  and  delivered,  operates 
as  an  admission  by  the  defendant  of  a  cause  of  action,  and 
that  the  plaintiff  is  entitled  to  nominal  damages,  but  it  does 
not  relieve  the  plaintiff  from  the  necessity  of  proving  the 
delivery  of  the  things  alleged  to  have  been  sold  and  deliv- 
ered, and  their  value;  therefore,  in  such  case,  the  defendant 
may  prove  that  such  things  never  were  delivered.  Parker 
v.  Smith,  64  X.  C.  R.  291. 

Jukisdiction  of  Justices. — 1.  Where  the  complaint 
alleged  that  the  plaintiff  had  delivered  to  the  defendant,  an 
Express  Company,  au  article  valued  at  less  thau  two  hun- 
dred dollars,  and  then  averred  the  loss  of  it  by  negligence, 
and  demanded  a  judgment  for  a  sum  over  two  hundred  dol- 
lars, it  was  held  that  the  claim  was  founded  upon  a  contract 
for  less  than  two  hundred  dollars,  and  that,  therefore,  the 
Superior  Court  had  no  jurisdiction  of  the  case.  Froelickv. 
/Southern  Express  Co.,  67  1ST.  C  R.  1. 

2.  When  the  claim  is  founded  on  a  contract  for  less  than 
two  hundred  dollars,  the  Superior  Court  has  no  jurisdiction 
of  it,  though  it  may  be  a  case  iu  which  the  plaintiff  might 
formerly  have  sued  in  tort,  and  though  the  damages  may  be 
uncertain.     Ibid. 

3.  When  it  appears  upon  the  complaint  that  the  claim 
is  founded  on  a  contract  for  less  than  two  hundred  dollars, 
an  objection  to  the  jurisdiction  of  the  Superior  Court  may 
be  taken  in  the  Supreme  Court,  though  it  appears  from  the 
pleadings  iu  the  former  Court  that  the  objection  was  not 
intended  to  be  taken  in  that  Court.     Ibid. 

Juitv — Challenge  of  Jurors. — 1.  Where  upon  a  trial 
for  a  capital  offence  a  juror  was  challenged,  and  the  question 
was  asked  "  whether  or  not  he  was  opposed  to  capital  pun- 
ishment,  and  he  answered  that  he  preferred  sending  a  man 
to  the  penitentiary  for  murder,  and  thought  the  law  ought  to 
be  changed:"  held  that  this  was  a  challenge  propter  affectum. 
State  v.  Mercer,  67  N.  C.  R.  266. 


500  ERRATA  AND  ADDENDA. 

2.  When  a  challenge  is  made  for  unindifferency,  the  court 
tries  the  fact,  unless  one  of  the  parties  demands  triers,  and 
of  the  fact  found,  either  by  the  court  or  the  triers,  there  is 
no  review.     Ibid. 

Where  the  plaintiff's  counsel,  before  the  jury  was  empan- 
neled,  requested  that  any  juror  in  the  box,  who  was  related 
to  any  one  of  the  defendants  by  blood  or  marriage  should 
retire,  and  no  juror  retired  or  replied:  held  that  it  was  not 
error  for  the  Judge  to  refuse  to  grant  a  new  trial,  because, 
after  verdict  and  judgment,  it  was  ascertained  that  a  juror 
was  related  by  marriage  to  one  of  the  defendants,  it  being 
a  matter  of  discretion.     Spicer  v.  Fulghum,  67  N.  0.  R.  18. 

Larceny — Breach  of  Trust — A  person  emplod  as  a 
field  hand,  working  by  the  day,  week  or  mouth,  has  no 
charge  of  his  employor's  money,  and  if  the  latter  entrusts 
him  with  money  and  he  embezzels  it,  he  is  not  guilty  of  lar- 
ceny.    State  v.  Fann,  65  N.  0.  R.  317. 

Promisory  Note — Payment  in  Currency. — A  note 
given  28th  July,  1805  for  $100,  and  payable  January  1st, 
I860,  which  says,  "this  money  to  be  paid  in  current  funds 
at  the  time  the  note  falls  due,"  can  only  be  discharged  by  a 
payment  in  such  funds  as  are  current  at  the  time  of  the  ma- 
turity of  the  note.     Hilliard  v.  Moore,  05  N.  0.  R.  540. 

Summons — When  Returnable. — The  Clerk  of  the  Su- 
perior Court  of  one  county  has  no  right  to  issue  a  summons 
returnable  to  the  Superior  Court  of  another  county,  but  ir- 
regularity of  service  is  waived  by  an  appearance  and  answer 
iu^bar.     Moore  v.  N.  G  R.  li.  Co.,  G7  N.  C  R.  209. 

Taxes — Collection  oe. — 1.  A  tax  list  prepared  and 
delivered  to  a  sheriff,  according  to  the  provisions  of  the 
Revised  Code,  ch.  99,  constituted  authority  for  the  col- 
lection of  taxes,  and  was  of  the  same  force  and  effect,  as  an 
execution  issued  from  the  County  Court  upon  a  judgment 
rendered  in  said  Court  in  a  matter  within  its  jurisdiction, 
and  it  is  no  part  of  the  duty  of  a  sheriff  to  enquire  whether 
the  taxes  were  properly  laid  or  not.  Gore  v.  Mastin,  Ob' 
N.  C.  R.  371. 

2.  The  sheriff  being  a  public  officer  is  not  bound  to  have 
a  regularly  certified  list  of  taxables  with  him,  when  he  dis- 
trains for  taxes;  it  is  sufficient  that  the  list  was  made  out 
and  delivered  to  him.     1  bid. 

3.  The  legality  of  a  tax  cannot  be  tested  in  an  action 
brought  to  recover  the  value  of  property  distrained  and  sold 
by  a  sheriff  under  and  by  authority  of  a  tax  list  in  his  hands. 
Ibid. 


NAMES 

OP 


CASES, 

REPORTED   AND  TO  BE 

FOUND    IN    THIS    DIGEST 


NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Abbot,  Overton  v Phil.  L.  R.  293   184 

Abrams,  Wilson  v 70  N.  C.  R.  324 298    422 

Adair,  State  v 60  N.  C.  R.  298 90     171     306 

Adair,  State  v 68  N.  C.  R.    63 231     458 

Adams,  Boner  v Go  K  C.  R.  639 43     360 

Adams,  Carrow  v 65  N.  C.  R.    32 380 

Adams,  Day  v 63  N.  C.  R.  254 41 

Adams,  Ladd  v 66  N.  C.  R.  164 233 

Adams  v.  Reeves, 68  N.  C.  R.  135 355     397 

Adams,  State  v 65  N.  C.  R.  537 212 

Adams,  Taylor  v 66  N.  C.  R.  338 357 

Adderton,  Russell  v 64  N.  C.  R.  417  117 

Addington,  Com'rsof  Jackson  v..  68  N.  C.  R.  254 18 

Addington  v.  McDowell, 63  N.  C.  R.  389 . 100 

Aderholt  v.  McKee 65  N.  C.  R.  257   117 

Albright  v.  Albright, 67  N.  C.  R,  271 149 

Albright  v.  Mitchell, 70  N.  C.  R.  445 390 

Alderman,  Ausley  v Phil.  L.  R.  215 298 

Alexander  v.  A.,T.&O.R.R.Co.,  67  N.  C.  R.  198 411 

Alexander  v  Com'rs  of  M'Dowell,  6  7  N.  C.  R.  330 333 

Alexander v.Com'rs of  M'Dowell,  70  N.  C.  R.  208 57 

Alexander,  Foard  v 64  N.  C.  R.    69 185 

Alexander  v.  Johnson, 70  N.  C.  R.  205  69 

Alexander  v.  Rintels, 67  N.  C.  R.  634 442 

Alexander,  Ross  v  G5  N.  C.  R.  576  277 

Alexander,  Williams  v 70  N.  C.  R.  665 290 

Alexander  v.  Sammy, 66  N.  C.  R.  577 .    323 

Alexander  v.  Taylor, Phil.  Eq.  R.     36 40 

A lford,  State  v 67  N.  C.  R.  322 

Allen,  McKinn  v 67  N.  C.  R.  181 47 


II  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Allen  v.  Plummer, 63  K  C.  R.  307 179 

Allen,  State  v 69  N.  C.  R.    23 251 

Allen,  State  v 68  N.  C.  R.  878 251 

Allen,  Taylor  v 67  N.  C.  R.  346 465 

Allison,  Brandon  v 66  N.  C.  R.  532 193 

Allison,  Bratton  v 70  N.  C.  R.  498 273 

Allison,  Brem  v 68  N.  C.  R  412 159    356    398 

Allison  v.  Bryson, 65  N.  C.  R.    44 419 

Allison,  Campbell  v 63  K  C.  R.  568 19 

Allison,  Rankin  v 64  N.  C.  R.  673 359     373 

Allison,  State  v Phil.  L.  R.  346 51 

Allison  v.  West.  N.  C.  R.  R.  Co.,  64  N.  C.  R.  382 4 

Alman,  Morrow  v 65  N.  C.  R.  508 388 

Alman,  State  v 64  N.  C.  R.  364 255     257 

Alsbrook  v.  Shields, 67  N.  C.  R.  333 66 

Alspaugh  v.  Jones, 64  N.  C.  R.    29 41 

Ambrose,  in  re, Phil.  L.  R.    91 25 

Anderson  v.  Cape  Fear  St'm.Co.,  64  N.  C.  R.  398 4     393 

Anderson,  Ledbetter  v Phil.  Eq.R.  323 59     177 

Anderson,  Palmer  v 63  N.  C.  R.  365 (see  arreta.) 

Andrew,  State  v Phil.  L.  R.  205 162 

Andrews,  Isler  v 66  N.  C.  R.  552 448 

Andrews  v.  McDaniel, 68  N.  C.  R.  385 150    361 

Andrews  v.  Pritchett, 66  N.  C.  R.  387 389 

Applewhite  v.  Hales, 65  N.  C.  R.  244 52 

Arents,  Wilson  v 70  N.  C.  R.  670 239 

Armfield  v.  Brown, 70  N.  C.  R.    27 421 

Arrington,  Collier  v Phil.  L.  R.  356   1 

Asbury,  McDowell  v 66  N.  C.  R.  444 199 

Askew,  Broughton  v Phil.  L.  R.    21 140 

Askew  v.  Pollock, 66  N.  C.  R.    49 14     115 

Askew  v.  Stevenson, Phil.  L.  R.  288 36    404 

Askew,  Sutton  v 66  N.  C.  R.  172 491 

Aston  v.  Craigmiles, 70  N.  C.  R.  316 345     399 

Atkins  v.  Mooney, Phil.  L.  R.    31 54     181 

Atkinson  v.  Cox, 64  N.  C.  R.  576 285 

Atkinson,  Davis  v 63  N.  C.  R.  210 (see  arreta.) 

Atkinson,  Miller  v 63  N.  C.  R.  537 132 

Atkinson,  Mitchener  v Phil.  L.  R.     23 319     488 

Atkinson,  Mitchener  v 63  N.  C.  R.  585   320 

Atkinson  v.  Whitehead, 66  N.  C.  R.  296 224 

Atkinson  v.  Williams, 63  N.  C.  R.  592 429 

Atlantic  Bank  v.  Frankford, . . .  Phil.  L.  R.  199 ,  12     381 

A.,T.  &  O.K. R. Co.,  Alexander  v.  67  N.  C.  R.  198 411 


NAMES  OF  OASES. 


Ill 


NAMES  OF  PARTIES. 

A.,  T.  &  O.  R.  R.  Co.  v.  Cowles, 
A.,  T.  &  O.  R.  R.  Co.  v.  Johnston, 
A.,  T.  &  O.  R.R.Co.,  Sampson  v. 
A.,  T.  &  O.  R.  R.  Co.  v.  Sharpe, 

Atwood,  Lemly  v 

Ausley  v.  Alderman, 

Austin  v.  Clark, 

Austin  v.  Helms, 

Avery,  Ex  parte, 

Avery,  Merony  v 

Avery,  Morris  v 

Avery,  State  v 

Avery,  West.  N.  C.  R.  R.  Co.  v. 

Aycock  v.  Harrison, 

Aycock  v.  Harrison, 

Backalan  v.  Littlefield, 

Badger  v.  Jones, 

Badham  v.  Jones, 

Badham,  Thompson  v 

Baer,  Gashine  v 

Baggarley  v.  Colvert, 

Bailey,  State  v 

Bailey  v.  Caldwell, 

Baird  v.  Baird, 

Baird,  Gudger  v 

Baird  v.  Hall, 

Baker,  Davis  v 

Baker  v.  Robinson, 

Baker,  State  v 

Baker,  State  v 

Baker,  State  v 

Baker,  State  v 

Ballard,  Merwin  v 

Ballard,  Merwin  v 

Ballard,  Comm'rs  of  Granville  v. 

Ballard,  Moore  v 

Ballard  v.  Thomason, 

Banister,  McAden  v 

Bank  of  Cape  Fear,  Boyd  en  v. . 
Bank  of  Charlotte  v.  Britton,. . . 
Bank  of  CapeFear,  Clerk's  office  v. 

Bank  of  Cape  Fear,  Fort  v 

Bank  of  Charlotte,  Burroughs  v. 
Bank  of  Charlotte  v.  Britton, . . 


REPORTER.  PAGE  OF  DIGEST. 

69  N.  C  R.  59 61  462 

70  K  C.  R.  348 413 

70  N.  C.  R.  404 25 

70  N.  C.  R.  509 210 

65  N.  C.  R.  46 222 

Phil.  L.  R.  215 298 

70  N.  C.  R.  458 (see  arreta.) 

65N.  C.  R.  560 336 

64  N.  C.  R.  113 490 

64  N.  C.  R.  362 388 

Phil.  L.  R.  238 1 

64  N.  C.  R.  608 236 

64  N.  C.  R.  491 410 

63  N.  C.  R.  145 385  450 

65  N.  C.  R.   8. 170 

64  N.  C.  R.  233 38 

66  N.  C.  R.  305 186  192  297 

64  N.  C.  R.  655. 176 

70  N.  O.  R.  141 187 

64  N.  C.  R.  108 37 

70  N.  C.  R.  688 2 

65  N.  C.  R.  426 21 

68  N.  C.  R.  472 91 

Phil.  Eq.  R.  317 328 

66  N.  C.  R,  438 29  360 

67  N.  C.  R.  230  80 

67  N.  C.  R.  388 137 

63  N.  C.  R.  191 54 

63  N.  C.  R.  276 256  299 

55  N.  C.  R.  332  33 

69  N.  C.  R.  147 259  398 

70  N.  C.  R.  530 260 

65  N.  C.  R.  468 103  367 

66  N.  C.  R.  398 275  388 

69  N.  C.  R.  18 116  458 

69  N.  C.  R.  21  116 

65  N.  C.  R.  436 425 

63  N.  C.  R.  478 275 

65  N.  C.  R.  13 48 

66  N.  C.  R.  3G5  367 

G6N.  C.  R.  214 46  113 

Phil.  L.  R.  417 48 

70  N.  C.  R.  283 51 

06  N.  C.  R.  345 443 


IV  NAMES  OF  OASES. 

NAMFS  OP  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Bank  of  Charlotte  v.  Davidson,.  70  N.  C.  R.  118 4G9 

Bank  of  Charlotte  v.  Hart, 67  K  C.  R.  264 50 

Bank  of  Charlotte  v.  Jenkins,  . .   64  N.  C.  R.  719 21     460 

Bank  of  Charlotte  v.  Stenhouse,  70  N.  C.  R.  703 273 

Bank  of  Fayetteville,  Bates  v. . .   65  K  C.  R.    81 276 

Bank  of  Wilniing'n,  Crawford  v.  Phil.  L.  R.  136 48     111     382 

Banks  v.  Shannonhouse, Phil.  L.  R.  284 204 

Banks,  State  v Phil.  L.  R.  577 310 

Barden  v.  Southerland, 70  N.  C.  R.  528 57 

Barham  v.  Gregory, Phil.  Eq.R.  243 315 

Barham  v.  Gregory, Phil.  Eq.R.  249 359 

Barnard,  Merrill  v Phil.  L.  R.  569 13 

Barnes  v.  Barnes, 65  N.  C.  R.  261   104 

Barnes  v.  Brown, 69  N.  C.  R.  439 341 

Barnes,  Howell  v 64  N.  C.  R.  626 284 

Barnes,  Miller  v 65  N.  C.  R.    67 299 

Barnett,  Rountree  v 69  N.  C.  R.    76 70    403 

Barnhill,  Wilson  v 64  N.  C.  R.  121 30 

Barrett,  Worthy  v 63  K  C.  R.  199 84     330 

Barringer  v.  Barringer, 69  N.  C.  R.  179 134 

Barringer  v.  Halbrook, 64  N.  C.  R.  540 17 

Barringer,  State  v Phil.  L.  R  554 298 

Barrington  v.  Neuse  R.  F'y  Co.,  69  N.  C.  R.  165 207 

Barry  v.  Sinclair, Phil.  L.  R.      7. . 2       36 

Barton,  Ex  parte, 70  N.  C.  R.  184 65 

Batchelor  v.  Macon, 69  K  C.  R.  545 131 

Batchelor  v.  Mason, 67  N.  C.  R.  181 485 

Bates  v.  Bank  of  Fayetteville, . .   65  N.  C.  R.    81 276 

Bates  v.  Hinsdale, 65  N.  C.  R.  423 277 

Bates  v.  Lilly, 65  N.  C.  R.  232 451 

Battle  v.  Davis, 68  N.  C.  R.  252 304 

Battle,  McRae  v 69  N.  C.  R.    98 241     358    369 

Battle  v.  Thompson, 65  N.  C.  R.  406 445 

Battle  v.  Wil.  &  Tar.  R.  R.  Co.,   68  N.  C.  R.  540 267     325 

Battle  v.  Wil.  &  Wei.  R  R.  Co.,  66  N.  C.  R.  343 411 

Baucum  v.  Smith, 66  N.  C.  R.  537 55 

Baurman,  Richards  v 65  N.  C.  R.  162 266     354 

Bayne  v.  Jenkins, 66  N.  C.  R.  356 333 

Beach,  Weodfln  v 70  N.  C.  R.  155   268 

Beal,  Jenkins  &  Co.  v 70  N.  C.  R.  440 356 

Bear  v.  Cohen, 65  N.  C.  R.  511 38     290 

Beard  v.  Hall, 63  N.  C.  R.    39 438 

Beard  v.  Hudson, Phil.  L.  R.  180 26 

Beatty,  Caldwell  v 67  N.  C.  R.  142 417 


ft  AMES  OF  CASES.  V 

KAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Beatty,  Caldwell  v G8  N.  C.  R.  399  H4 

Beatty,  Caldwell  v 69  N.  C.  R.  355   42     293    418 

Beatty,  Howard  v 64  N.  C.  R.  559 374    441 

Beatty,  State  v Phil.  L.  R.    52  253 

Beatty,  State  v 66  N.  C  R.  648 53 

Beatty,  N.  C.  Land  Co.  v 69  N.  C.  R,  329 

Beckham  v.  Wittkowski, 64  K  C.  R.  464 144    189 

Belcher's  Will, 66  N.  C.  P.    51 494 

Bell,  Hill  v Phil.  L.  R.  122 152    494 

Bell  v.  King, 70  N.  C.  R.  330   298 

Bell,  Latham  v 69  N.  C.  R.  135 194 

Bell,  State  v Phil.  L.  R.    76   ...83     348    405    463 

Bell,  State  v G5  N.  C.  R.  313 §0 

Benbow,  McAdoo  v 63  JST.  0.  R.  461 86 

Benbow  v.  N.  C.  R.  R.  Co  , . . . .  Phil.  L.  R.  421  .... .  72 

Bennett,  Crummen  v OS  N.  C.  R.  494 235 

Bennick  v.  Bennick, Phil.  Eq.  R.    45 474 

Benson,  Linker  v 67  N.  C.  R.  150 423 

Berry  v.  Thompson 64  N.  C.  R.     77 281 

Berry,  Thompson  v 64  N.  C.  R.     81 382 

Berry,  Thompson  v 65  N.  C.  R.  484 453 

Bessenfc  v.  Harris, 63  N.  C.  R.  542 9 

Bessent  v.  Henderson 68  N.  C.  R.  223   44    105 

Betts,  Gifford  v 61  N.  C.  R.     62 101 

Bibb,  Foreman  v 65  N.  C.  R.   128 278 

Biggs  v.  Brickell, 68  N.  C.  R.  239  179 

Biggs,  Ex  parte 64  N.  C.  R.  202 93 

Biggs  v.  Harris, 64  N.  C.  R.  413 26 

Biggs  v.  Williams, 66  N.  C.  R.  427 13    272    360 

Billups,  Eason  v 65  N.  C.  R.  216 (see  erreta. ) 

Bingham  v.  Richardson,    Phil.  L.  R.  315 382 

Birdsey  v.  Harris, 68  N.  C,  R.     92 288 

Black  v.  Jones, 64  N.  C.  R.  318 409 

Blackburn  v.  Brooks, 65  N.  C.  It.  413 78 

Blackburn,  Com'ra  of  Forsj  th  v.  OS  N.  C.  R.  406 11    300    415 

Blackmer  v.  Phillips, 67  N.  C.  R.  310 55 

Blackwelder,  State  v Phil.  L.  R.     38 253 

Blackwell  v.  Cummings, 68  N.  C.  R.  121 341 

Blackwell,  Willard  v 65  N.  C.  R.  555 110 

Blagge,  State  v Phil.  L.  R.     11 463 

B    keley,  Latham  v 70  N.  C.  R.  368 208 

Blakeley  v.  Patrick, 67  N.  C.  R.     40 66    341 

Jock,  State  v  Phil.  L.  R.  212 15 

Bland  v.  Hartsoe, 65  N.  O.  R.  204 192    199 

Bhmd  v.  O'Hagan,   64  N.  C.  R.  471  20 


VI  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAdF,  OF  DIGEST?. 

Bland  v.  Warren, 65  N.  C.  E.  372 161 

Blankenship  v.  McMahon, 63  N.  C.  B.  180 37 

Bledsoe  v.  Nixon, 68  N.  C.  B.  521 118    461 

Bledsoe  v.  Nixon, 69  N.  0.  B.     81 24 

Bledsoe  v.  Nixon, 69  N.  C.  B.     89 273    344 

Bledsoe,  People  and  Welker  v. .   68  N.  C.  B.  457 90    349 

Bledsoe  v.  State, 64  N.  C.  B.  392. 67 

Blevins,  Waugh  v 68  N.  C.  B.  167 194    486 

Blossom  v.  Van  Amringe, Phil.  Eq.  B.  133 213    262 

Blossom  v.  Van  Amringe 63  N.  C.  B.     65 27 

Blount  v.  Carroway, 67  N.  C.  B.  396 480 

Blount,  Mann  v 65  N.  C.  B.     99 50 

Blount  v.  Windley 68  N.  C.  B.      1 50    468 

Blue,  Nelson  v 63  N.  O.  B.  659 317    376 

Blum,  Sledge  v 63  N.  C.  B.  374 19    264    488 

Bobbitt  v.  Brownlow, Phil.  Eq.  B.  252 475 

Bobbitt  v.  Insurance  Co., 66  N.  C.  B.     70 270 

Bobbitt,  State  v 70  N.  0.  B.     81 358    400 

Bodenhammer,  Whitfield  v Phil.  L.  B.  362 472 

Bondv.Bond, 69  N.  0.  B.     97 96 

Bond,  Whitaker  v Phil.  Eq.  B.  227 328 

Bond,  Whitaker  v 63  N.  C.  B.  290 99    218    263 

Bond,  Woodley  v 66  N.  C.  B.  396 350 

Boner  v.  Adams, 65  N.  C.  B.  639 43 

Bost,  Clodfelter  v 70  N.  C.  B.  733 228 

Bost  v.  Minguis, 64  N.  0.  B.     44 473 

Boudinot,  Moore  v 64  N.  C.  B.  190 68 

Bowman,  Winstead  v 68  N.  C.  B.  170 495 

Boyd  v.  Murray, Phil.  Eq.  B.  238 177 

Boyden  v.  Bank  of  Cape  Fear. .   65  N.  C.  B.     13 48 

Boyden,  Cauble  v 69  N.  C.  B.  434 293 

Boykin  v.  Boykin, 70  N.  C.  B.  262 150 

Boykin,  Ferrell  v Phil.  L.  B.       9 26 

Boylan  v.  Boylan, Phil.  Eq.  B.  160 315 

Boyle  v.  City  of  Newbern, 64  N.  C,  B.  664 410 

Boyle  v.  Webb, 63  N.  C.  B.  271 362    489 

Boyleston's  In.  Co.  v.  Davis,. . .   63  N.  C.  B.     17 467 

Boyleston's  In.  Co.  v.  Davis,. . .   70  N.  C.  B.  485 120 

Bradley,  DeBosset  v 63  N.  C.  B.     17 299    459 

Branch  v.  Hunter Phil.  L.  B.       1 129     146 

Branch,  Stancill  v Phil.  L.  B.  217 12 

Branch,  Stancill  v Phil.  L.  B,  306 177 

Branch,  State  v 68  N.  C.  B.  186 307 

Brandon  v.  Allison, 66  N.  C.  B.  532 193 

Brandt,  Ward  v Phil.  Eq.  B.    71 474 


NAMES  OF  OASES.  VII 


NAMES  OP  PARTIES.  REPORTER. 

Brantley,  State  v 63  N.  C.  ft.  518. 

Braswell,  Dancy  v 64  N.  C.  R.  102. 

Braswell,  Knight  v 70  N.  0.  E.  709 . 

Bratton,  Allison  v 70  N.  C.  R.  498. 

Bray,  State v 67  N.  C.  R.  283. 

Brem  v.  Allison 68  N.  C.  R.  412. 

Brem  v.  Jamieson, 70  N.  C.  R.  566 

Brendle  v.  Heron, 68  N.  C.  R.  496. 

Brevard,  State  v Phil.  Eq.  R.  141 . 

Briant  v.  Corpening, Phil.  Eq.  R.  325 . 

Brickell,  Biggs  v 68  N.  C.  R.  239 . 

Bridgers  v.  Bridgers, 69  N.  C.  R.  451 . 

Briggs,  Jenkins  v . . . . .  65  N.  C.  R.  159 . 

Brinkley  v.  Swicegood, 65  N.  C.  R.  626. 

Britton  v.  Miller, 63  N.  O.  R.  268. 

Britton,  Bank  of  Charlotte  v.. . .  66  N.  C.  R.  345. 

Broaddus  v.  Evans, 63  N.  C.  R.  633. 

Broadway,  State  v 69  N.  O.  R.  411 . 

Brodnax  v.  Groom, 64  N.  C.  R.  244. 

Brodnax,  State  v Phil.  L.  R.    41. 

Brogden  v.  Privett 67  N.  C.  R.     45 . 

Brooks,  Blackburn  v 67  N.  O.  R.  413 . 

Brooks,  Link  v Phil.  L.  R.  499. 

Brooks  v.  Morgan, 5  Ired.  R.     481 . 

Brooks  v.  Tucker, Phil.  L.  R.  309. 

Broom,  McLarty  v 67  N.  C.  R.  311 . 

Brothers  v.  Com'rs  of  Currituck,  70  N.  C.  R.  726. 

Broughton  v.  Askew, Phil.  Eq.  R.    21 . 

Broughton  v.  Haywood Phil.  L.  R.  380. 

Brower  v.  Hughes 64  N.  C.  R.  642 . 

Brown,  Barnes  v 69  N.  C.  R.  439 

Brown,  Armtield  v 70  N.  C.  R.     27. 

Brown  v.  Com'rs  of  Washington,  63  N.  C.  R.  514. 

Brown,  Fentress  v Phil.  L.  R.  373 . 

Brown  v.  Foust 64  N.  C.  R.  672. 

Brown  v.  Green, 64  N.  C.  R.  553 . 

Brown  v.  Hawkins 65  N.  C.  R.  645 . 

Brown  v.  Hawkins, 68  N.  O.  E.  444 . 

Brown,  Isler  v 66  N.  C.  R.  656  . 

Brown,  lsler  v 67  N.  C.  R.  175. 

Brown,  Lsler  v 69  N.  C.  R.  125. 

vu,  Keerans  v 68  N.  C.  R.     43. 

sra,  MoOarty  v 67  N.  C.  R.  311 . 

Brown  v.  White 68  N.  O.  R.     05 . 

Brown,  Robeson  v 63  N.  C.  R.  554 . 


PAGE  OP  DIGEST. 

169 

393 

441 

61 

273 

258 

157  356 

398 

450 

115 

365 

464 

214 

179 

175 

293 

160  453 

468 

102 

457 

316 

367 

422 

354 

53 

87 

236 

41 

78 

64 

336 

134 

203 

224 

466 

140 

68 

335 

148 

366 

341 

421 

156 

401 

82 

442 

441 

13 

38 

39 

180 

375 

289 

174 

203 

224 

132 

86 

440 

VIII  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER. 

Brown  v.  Smith, 67  N.  C.  R.  245 . 

Brown,  State  v 67  N.  C.  B.  470. 

Brown,  State  v 67  N.  C.  B.  435. 

Brown,  State  v ,  67  N.  C.  B.  475 . 

Brown,  State  v 68  N.  C.  E.  554. 

Brown,  State  v 70  N.  C.  E.     27. 

Brown  v.  Turner, 64  N.  C.  E.  381 . 

Brown,  Warren  v 70  N.  C.  E.     93 

Brownlow,  Bobbitt  v Phil.  Eq.  E.  252 . 

Bruner,  State  v 65  N.  C.  B.  499  . 

Bryan,  Earl  v Phil.  Eq.  E.  278. 

Bryan  v.  Faucette, 65  N.  C.  E.  650 . 

Bryan  v.  Fowler, 70  N.  C.  E.  596 . 

Bryan  v.  Heck,   ." 67  N.  C.  E.  322 . 

Bryan  v.  Foy, 69KC.E.     45. 

Bryan  v.  Harrison, 69  N.  C.  E.  151 . 

Bryan,  Haywood  v 63  N.  C.  E.  521 . 

Bryan  v.  Hubbs, 69  N.  C.  E.  423. 

Bryan,  Street  v 65  N.  C.  E.  619 . . 

Bryan  v.  Walker, 64  N.  O.  E.   141 . 

Bryan,  Walston  v 64  N.  0.  E.  764. 

Bryant,  State  v 65  N.  C.  E.  327. 

Bryant  v.  Scott, 67  N.  C.  E.  391 . 

Bryce,  Amis  v 70  N.  C.  E.  422 

Bryce  v.  Butler 70  N.  0.  E.  585 

Bryce,  Calloway  v 66  N.  C.  E.  514 . 

Bryson,  Allison  v 65  N.  0.  E.     44. 

Bryson  v.  Shuler, 65  N.  0.  E.   201 . 

Bryson,  Smith  v Phil.  Eq  E.  237 

Buckner,  State  v Phil.  L.  E.   558 . 

Bale  v.  Parker, 63  N.  C.  E    131 . 

Buie  v.  Howell, 64  N.  C.  E.  446. 

Ballard  v.  Johnson 65  N.  C.  B,  436 

Ballings  v.  Marshall, 70  N.  C.  E.   520 

Bullock,  State  v .  0.  E.  570 . . 

Bunting  v.  Foy, 66  N.  C.  B,  193 . 

Bunting  v.  Harris, Phil.  Eq.  E.    11 . 

Bunting  v.  Mcllhenuy, Phil.  L.  B,  579 

Banting,  State  v 65  N.  C.  E.  317. 

Bunting  v.  Wright, Phil.  L.  R.  295 . 

Burl  sank  v.  Williams, Phil.  L.  E.     37. 

Ink  v.  Wiley, 66  N.  C.  E.     58  . 

jobs, C3  PT.  C.  E.  196. 

.  Stokely, 65  N.  0.  R.  560 . 

Barns  v.  Harris 66  N.  C.  E.  509. 


PAGE  OF  DIGEST. 

7 

149 

397 

229 

226 

42 

54 

349 

475 

171 

214 

175 

4 

104 

346 

3 

444 

368 

25 

176 

451 

17 

389 

445 

408 

177 

387 

30 
424 

56 
153 
395 
419 

40 
353 
208 
141 
327 

13 

152 

293 

257 

360 

389 

270 
312 
269 

S2 

378 

286 

234 

403 

NAMES  OF  CASES.  IX 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Burns  v.  Harris 67  N.  C.  E.  140 234 

Burns  v.  Harris, 67  N.  O.  B.  376 

Burroughs  v.  Bank  of  Charlotte,  70  N.  0.  B.  283 51 

Burroughs  v.  Comm'rs  of  Rich- 
mond,    65  N.  C.  B.  234 272 

Burroughs  v.  Jenkins, Phil.  Eq.  B.    33 158    213 

Burroughs  v.  N.  C.  B.  B.  Co., . .  67  N.  C.  B.  376 412 

Burroughs,  Bedmond  v 63  N.  C.  B.  242 316    458 

Burwell,  State  v 63  N.  C.  B.  661 33    307 

Burwell,  Harris  v 65  N.  C.  B.  584 445 

Burt,  State  v 64  N.  C.  E.  619 310 

Burton  v.  Wilkes, 66  N.  C.  B.  604 61     871     395 

Butler,  Brye  v 70  N.  C.  B.  585 153 

Butler,  State  v 65  N.  C.  B.  309 812 

Butner  v.  Chaffin, Phil.  L.  B.  497 136 

Byers,  Moore  v 65  N.  C.  E.  240 198     276 

Byers,  Carlton  v 70  N.  C.  B.  691 196 

Bynum  v.  Daniel, 63  N.  C.  B.    24 387 

Bysaner,  Grier  v 63  N.  C.  B.  131 458 

Cable  v.  Hardin, 67  N.  C.  B.  472 443 

Caffey  v.  McMichal, 64  N.  C.  B.  507 221 

Cahoon  v  Simmons, 68  N.  C.  B.  393 105 

Caldwell  v.  Parks, Phil.  L.  B.    54 383 

Caldwell,  Douglass  v 64  N.  C.  B.  872 880 

Caldwell,  Douglass  v 65  N.  C.  B.  248 424 

Caldwell,  Paine  v 65  N.  C.  B.  488 472 

Caldwell,  Bailey  v 68  N.  C.  R.  472 91 

Caldwell  v.  Beatty, 68  N.  C.  B.  399 114 

Caldwell  v.  Beatty, 69  N.  C.  B.  365 42    293    418 

Caldwell  v.  Beatty, 67  N.  C.  B.  142 417 

Caldwell,  Malpass  v 70  N.  C.  R.  130 218 

Caldwell,  Pearson  v 70  N.  C.  R.  291 228     381 

Califer,  Lynan  v 64  N.  C.  R.  572 302 

Calloway  v.  Hamby, 65  N.  C.  R.  631 104 

Calloway  v.  Bryce, 66  N.  C.  R.  514 395 

Calloway,  Wilcoxon  v 67  N.  C.  R.  463 486 

Calvert,  Stancill  v 63  N.  C.  R.  616 140 

Calvert  v.  Williams, 64  N.  C.  R.  168 219 

Calvert;  Baggerly  v 70  N.  C.  R.  688 2 

Camp,  Twittyv Phil.  Eq.  R.    61 128 

Camp  v.  Smith, 68  N.  C.  R.  537 203     318 

Campbell,  State  v 68  N.  C.  R.  157 24 

Campbell  v.  Allison, 63  N.  C.  R.  568 19 

Campbell,  Perry  v 03  N.  C.  R.  257 464 

2 


X  NAMES  OF  OASES. 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Cannon,  Cooper  v Phil.  Eq.  R.    83 314 

Cannon  v.  Robinson, 67  N.  C.  R.    53 

Cansler,  Henderson  v 64  N.  C.  R.  469 62 

Cansler,  Henderson  v 65  N.  C.  R.  542 29 

Cape  Fear  &  D.  R.  Nav.  Co.  v. 

Costen, 63  N.  C.  R.  264 19     111 

Cape  Fear  Steamboat  Co.,  Ander- 
son v 64  N.  C.  R.  399 4    393 

Capehart  v.  Etheridge, 63  N.  C.  R.  353 

Cardwell  v.  Cardwell, 64  N.  C.  R,  621 

Cardwell  v.  Mebane, 68  N.  C.  R.  485 

Carlton  v.  Hart, 63  N.  C.  R.  569 

Carlton  v.  Byers, 70  N.  C.  R.  691   

Carney  v.  Whitehurst, 64  N.  C.  R.  426 

Caroon  v.  Cooper, 63  N.  C.  R.  386 

Carpenter  v.  Keeter 65  N.  C.  R.  475 

Carpenter,  Paul  v 70  N.  C.  R.  502 

Carr  v.  Fearington, 63  N.  C.  R.  560 

Carrawan,  Credle  v 64  N.  C.  R.  422 

Carrier  v.  Jones, 68  N.  C.  R.  127 

Carrier  v.  Jones, 68  N.  C.  R.  130 

Carroll  v.  Haywood, 64  N.  C.  R.  481 

Carrow  v.  Wash'g'n  Bridge  Co.,  Phil.  L.  R.  118 

Carrow  v.  Adams, 65  N.  C.  R.    32 

Carroway,  Blount  v 67  N.  C.  R.  396 

Carson  v.  Carson, Phil.  Eq.  R.   57 

Carson  v.  Carter, 64  N.  C.  R.  332 

Carson  v.  Com'rs  of  Cleaveland,  64  N.  C.  R.  566 

Carson  v.  Oates 64  N.  C.  R.  115 

Carson,  Parker  v 64  N.  C.  R.  563 

Carson  v.  Mills 69  N.  C.  R.     32 

Carson  v.  Mills, 69  N.  C.  R.  122 

Carson  v.  Lineberger, 70  N.  C.  R.  173 

Carstaphen,  Harris  v 69  N.  C.  R.  416 

Carter  v.  McGehee Phil.  L.  R.  431 

Carter,  Carson  v 64  N.  C.  R.  332 

Carter  v.  Cocke, 64  N.  C.  R.  239 

Carter  v.  Hoke, 64  N.  C.  R.  348 

Carter,  Savage  v 64  N.  C.  R.   196 

Carter  v.  West.  N.  C.  R.  R.  Co.,  68  N.  C.  R.  346 

Carter,  Jenkins  v 70  N.  C.  R.  500 

Castleberry,  Green  v 70  N.  C.  R.     20 

Cauble  v.  Boyden, 69  N.  C.  R.  434 

Cauble,  State  v 70  N.  C.  R.    62 

Caudle,  State  v 63  N.  C.  R.    30 


77 

264 

21 

155 

19 

196 

490 

489 

129 

243 

328 

240 

423 

343 

20 

457 

380 

480 

121 

27 

330 

409 

196 

442 

152 

455 

399 

228 

75 

220 

27 

475 

264 

337 

360 

373 

204 

298 

421 

293 

160 

428 

14 

208 

NAMES  OF  OASES.  XI 

NAMES  OP  PAKTIES.  REPORTER.  PAGE  OP  DIGEST. 

Chaffin,  Butner  v Phil.  L.  E.  497 136 

Chambers  v.  Davis Phil.  Eq.  E.  152 314 

Chambers,  McConaughey  v . . . .  64  N.  C.  E.  284 445 

Chambers  v.  Greenwood, 68  N.  C.  E.  274 390 

Chandler  v.  Holland, Phil.  L.  E.  598 474 

Chandler  v.  Hunt 65  N.  C.  E.  587 445 

Chapman,  Cohen  v Phil.  Eq.  E.    92 97    437 

Chapman  v.  Waxcaser, 64  N.  C.  E.  532 60 

Charleton  v.  Sloan, 64  N.  C.  E.  702 43 

Charles  v.  Kennedy, 64  N.  C.  E.  442 129 

Charlotte  &  S.   C.  E.    E.  Co., 

Pinnix  v 66  N.  C.  E.     34 73 

Charlotte  &  S.   C.  E.  E.   Co., 

Stenhouse  v 70  N.  C.  E.  542 9 

Charlotte   &   S.    C.    E.    E.  Co., 

Graham  v , 64  N.  C.  E.  631 372 

Charlotte   &  S.    C.    E.   E.  Co., 

Glenn  v 63  N.  C.  E.  510 72    393 

Chatham  E.  E.  Co.,  Kingsbury  v  66  N.  C.  B.  284 372 

Cheatham  v  Jones, 68  N.  C.  E.  153 234 

Cheek,  Lipscomb  v Phil.  L.  E.  332 81 

Cherry  v.  Long, Phil.   L.  E.  466 108 

Cherry,   State  v 63  N.  C.  E.  493 31     151     169 

Cherry  v.  Savage, 64  K  C.  E.  103 441 

Cheshire,  Garrett  v 69  N.  C.  E.  396 235 

Childs  v.  Martin, 68  N.  C.  E.  307 24 

Childs  v.  Martin, 69  N.  C.  E.  126 305 

Chipley,  Simonton  v 64  N.  C.  E.  152 10      20 

Chipley  v.  Keeton, 65  N.  C.  E.  534 354 

Chisholm,  McLennan  v 64  N.  C.  E.  323 20 

Chisholm,  McLennan  v 66  N.  C.  E.  100 129     395 

Chisholm,  McLennan  v 64  N.  C.  E.  328 219 

Church,  State  v 63  N.  C.  E.    15 33 

Church  v  Furniss, 64  N.  C.  E.  659 405 

City  of  Newbern,  Boyle  v 64  N.  C.  E.  664 410 

City  of  Newbern,  McLin  v 70  N.  C.  E.     12 471 

City  of  Newbern,  Smith  v 70  N.  C.  E.     14 471 

City  of  Wilmington,  Weithv...   68  N.  C.  E.     24 57     160    470 

Clark,  Finch  v Phil.  L.  E.  355 474 

Clark  v.  Clark 64  N.  C.  E.  150 37 

Clark  v.  Clark, 65  N.  C.  E.  655 151     189    367 

Clark,  Simonton  v 65  N.  C.  E.  525 327 

Clark  v.  Stanly 66  N.  C.  E.     59 347 

Clark,  Holland  v 67  N.  C.  E.  104 363 

Clark,  McDowell  v 68  N.  C.  E.  118 188    450 


XII  NAMES  OF  CASES. 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Clarke,  Austin  v 70  N.  C.  R  458 25 

Clarke  v.  Wagoner, 70  N.  C.  R.  706 63    137 

Clarke  v.  Williams 70  N.  C.  R.  679 462 

Clayton  v.  Jones 68  N.  C.  R.  497 346    366 

Clayton,  Lusk  v 70  K  C.  R.  184 30 

Clegg  v.  N.  Y.  Soapstone  Co., . .  66  N.  C.  R.  391 287 

Clegg  v.  N.  Y.  Soapstone  Co., . .  67  N.  C.  R.  302 288 

Clements  v.  Mitchell Phil.  Eq.  R.      3 161    352 

Clemmons  v.  Hampton 64  N.  C.  R.  264 409 

Clemmons  v.  Hampton, 70  N.  C.  R.  534 67 

Clerk's  Office  v.  Bank  of  Cape 

Fear, 66  N.  C.  R.  214 46     113 

Clerk's  Office  v.  Huffstetter, ....  67  N.  C.  R.  449 114 

Clodfelter  v.  Bost, 70  N.  C.  R.  733 228 

Coates,  Dowd  v 67  N.  C.  R.  273 122 

Cobb  v.  Cromwell Phil.  Eq.  R.    18 96 

Cobb  v.  Hardin, 67  N.  C.  R.  472 229    391    443 

Cobb,  Love  v • 63  N.  C.  R.  324 99    109     365 

Cobb  v.  Taylor,  •  •  •  • 64  N.  C.  R.  193 78 

Coble,  Rose  v Phil.  L.  R.  517 144    378 

Coble,  Smith  v Phil.  Eq.  R.  332 98 

Coble,  Shawv 63  N.  C.  R.  377 220 

Cocke,  Carter  v 64  N.  C.  R.  239 475 

Cockran,  Deel  v 66  N.  C.  R.  269 461 

Coffield,  Jordan  v 70  N.  C.  R.  110 261 

Cogdell  v.  Exum, 69  N.  C.  R.  464 14      47 

Cogdell,   Moye  v 66  N.  C.  R.  403 390 

Cogdell,  Moye  v 69  K  C.  R.    93 42 

Cohen,Bearv 65  N.  C.  R.  511 38    290 

Cohen,  Seymour  v 67  N.  C.  R.  345 346 

Cohen,  Marsh  v 68  N.  C.  R.  283 417 

Cohen,  Salisbury  v 68  N.  C.  R.  289 418 

Cohn  v.  Chapman Phil.  Eq.  R.    92 97    437 

Cole,  Long  v 66  N.  C.  R.  381 377 

Cole,  Worthy  v 69  N.  C.  R.  157 461 

Coleman  v.  Coleman Phil.  Eq.  R.    43 214 

Collier  v.  Arrington, Phil.  L.  R.  356 1 

Collier,  Kornegay  v 65  N.  C.  R.     69 425 

Collier  v.  Gilbert 65  N.  C.  R.  135 416 

Collins  v.  Collins, Phil.  Eq.  R.  153 240 

Collins,  State  v 70  N.  C  R.  241 260    307 

Colsonv.  Martin Phil.  Eq.R.  125 112     196    239 

Colvord  v.Monroe, 63  N.  C.  R.  288 243 

Combs  v.  Harshaw, 63  N.  C.  R.  198. 109 

Com'rs  of  Washington,  Brown  v.  63  N.  C.  R.  514 156    401 


NAMES  Otf  OASES.  XIII 

NAMK8  OP  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Com'rs  of  Kockingham,  Broad- 

nax  v 64  N.  C.  R.  244 87 

Com'rs  of  Cleaveland,  Carson  v.  64  N.  C.  R.  566 330    409 

Com'rs  of  Catawba,  Setzer  v. ...  64  N.  C.  R.  516 409 

Com'rs  of  Cleaveland,  Pegram  v.  64  N.  C.  R.  557 88    330 

Com'rs  of  Richmond,  Leak  v...  64  N.  C.  R.  132 407    415 

Com'rs  of  Perquimans,  Winslow  v  64  N.  C.  R.  218 342 

Com'rs  of  Chatham,  Love  v 64  N.  C.  R.  706 115     366 

Com'rs  of  Cleaveland,  Pegram  v  65  N.  C.  R.  114 330 

Com'rs  of  Lincoln,  King  v 65  N.  C.  R.  603 89 

Com'rs  of  Cumberland,  Lutterloe  65  N.  C.  R.  493 331 

Com'rsof  Richmond, Burroughsv  65  N.  C.  R.  234 272 

Com'rs  of  Chatham,  Sedbury  v.  66  K  C.  R.  486   381 

Com'rs  of  Carteret,  Thomas  v. .   66  N.  C.  R.  522 333 

Com'rs  of  Wake,  Pullen  v 66  N.  C.  R.  361  464 

Com'rs  of  McDowell,  Alexander,  67  N.  C.  R.  330 333 

Com'rs  of  Cherokee,  Green  v. . .   67  N.  C.  R.  117 116 

Com'rs  of  Forsythe,  Hill  v 67  N.  C.  R.  367 115 

Com'rs  of  Cleaveland,  Johnston  v  67  K  C.  R.  101 333 

Com'rs  of  Jackson  v.  Addington,  68  N.  C.  R.  254 18 

Com'rs  of  Salisbury,  Shaver  v. .  68  N.  C.  R.  291  471 

Com'rs  of  Forsythe  v.  Blackburn  68  N.  C.  R.  406 11     300    415 

Com'rs  of  Raleigh,  Pullen  v . . . .  68  N.  C.  R.  451 470 

Com'rs  of  Bladen,  Jones  v 69  N.  C.  R.  412 373 

Com'rs  of  Cumberland,  Lilly  v.  69  N.  C.  R.  300 465 

Com'rs  of  Granville  v.  Ballard, .   69  N.  C.  R.     18 116    458 

Com'rs  of  Orange,  Ruffin  v 69  N.  C.  R.  498 465 

Com'rs  of  Alamance,  Moore  v. .   70  N.  C.  R.  340 114 

Com'rs  of  Catawba  v.  Setzer ....  70  N.  C.  R.  426 356 

Com'rs  of  Craven,  Street  v 70  N.  C.  R.  644 116    466 

Com'rs  of  Currituck,  Brothers  v.  70  N.  C.  R.  726 466 

Com'rs  of  Davidson,  Lowe  v . . . .  70  N.  C.  R.  532 268 

Com'rs  of  Franklin,  Uzzell  v.. . .   70  N.  C.  R.  564 334 

Com'rs  of  Henderson  v.  Com'rs 

of  Rutherford 70  N.  C.  R.  657 373 

Com'rs  of  Jones,  Haughton  v. . .   70  N.  C.  R.  466 466 

Com'rs    of   McDowell,    Alexan- 
der v 70  N.  C.  R.  208 57 

Com'rs  of  Rutherford,  Steele  v. .   70  N.  C.  R.  137 373 

Com'rs  of  Rutherford,  Com'rs  ot 

Henderson  v 70  N.  C.  R.  657 373 

Com'rs  of  Beaufort,  Reiger  v. . .   70  N.  C.  R.  319 471 

Com'rs  of  Beaufort  v.  Webb, . . .  70  N.  C.  R.  307 334 

Com'rs  of  Wilkes,  Edwards  v. . .  70  N.  C.  R.  571 334    373 

Coniglaud  v.  Insurance  Co., Phil.  Eq.  R.  341  1H 


XIV  FAMES  OF  CASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Conley,  Kincaid  v Phil.  Eq.  E.  270 '  301 

Conley,  Kincaid  v 64  N.  C.  E.  387 188    302 

Conley,  Jenkins  v 70  N.  C.  E.  353 337 

Conoley  v.  McQnigg 64  N.  0.  E.  662 471 

Conrad,  Flynt  v Phil.  L.  E.  190 142 

Cooke  v.  Cooke, Phil.  L.  E.  583 238    348 

Cooke,  State  v Phil.  L.  E.  535 256 

Cooke,  Donnel  v 63  N.  C.  E.  227 202    365 

Coon  v.  N.  C.  E  E.  Co., 65  N.  C.  E.  507 411 

Cooper  v.  Cannon Phil.  Eq.  E.    83 314 

Cooper,  Caroon  v 63  N.  C.  E.  386 489 

Cooper,  Cowles  v 69  N.  C.  E.  406 281 

Cooper,  Gray  v 65  N.  C.  E.   183 149 

Cooper,  Vest  v 68  N.  C.  E.  131 420 

Coor  v.  Spicer, 65  N.  C.  B.  401 483 

Cornelius,  Morrison  v 63  N.  C.  E.  346   3       19 

Corpening,  Briant  v Phil.  Eq.  E.  325 214 

Costen,   Cape  Fear  &  D.  E.  N. 

Co.  v 63N.C.B.264 19     111 

Cotton  Ex  parte Phil.Eq.E.    79 437     45® 

Cotton.  Mayhoe  v 69  N.  C.  E.  289 235 

Caughlan  v  White, 66  N.  C.  E.  102 180 

Council  v.  Eivers, 65  N.  C.  E.    54 438 

Council,  Williams  v 65  N.  C.  B.     10 401 

Council  v.  Willis, 66  N.  C.  E.  359 287 

Covington  v.  Ingram, 64  N.  C.  B.  123 377 

Covington  v.  Wall, 65  N.  C.  E.  594 223 

Covington  v.  Leak, 67  N.  C.  E.  363 224 

Covington,  State  v 70  N.  C.  E.    71 209 

Cowan,  Crook  v 64  N.  C.  E.  743 106 

Cowan,  Jurnsey  v 67  N.  C.  E.  393  480 

Cowles  v.  Haynes 67  N.  C.  E.   128 17     417 

Cowles,  Atlantic  &  N.  C.  E.  E. 

Co.  v 69  N.  C.  E.     59 61    462 

Cowles  v.  Cooper, 69  N.  C.  E.  406 282 

Cowles,  Stokes  v 70  N.  C.  E.  124 81 

Cox  v.  Gray, Phil.  L.  E.  488 139 

Cox,  Stickney  v Phil.  L.  E.  495 17 

Cox,  Atkinson  v 64  N.  C.  E.  576 285 

Cox  v.  Hamilton 69  N.  C.  E.     30 143 

Cox  v.  Long 69  N.  C.  E.       7 488 

Cox  v.  Peebles, 70  N.  C.  E.     10 228 

Craige,  Hall  v 65  N.  C.  E.     51 274    355    419 

Craige,  Neely  v Phil.  L.  E.  187 281 

Craige,  Hall  v 68  N.  C.  E.  305 280 


NAMES  OF  OASES.  XV 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OF  DIGEST . 

Craigmiles,  Aston  v 70  N.  C.  E.  316 345    399 

Crawford  v.  Bank  of  Wilming'n,  Phil.  L.  E.  136 48     111    382 

Crawford,  Johnston  v Phil.  L.  E.  342 147 

Crawford  v.  McAdams 63  N.  C.  E.     67 376 

Crawford  v.  Woody, 63  N.  C.  E.  100 99 

Crawford  v.  Dalrymple, 70  K  C.  E.  316 450 

Crawford  v.  Lytic, 70  N.  C.  E.  385 56 

Creycroft  v.  Morehead, 67  N.  C.  E.  422 241     268 

Credle,  Myers  v 63  N.  C.  E.  504 426 

Credle,  State  v 63  N.  C.  E.  506 20 

Credle  v.  Swindell, 63  N.  C.  E.  305 5 

Credle  v.  Carawan, *fc  .  64  N.  C.  E.  422 240 

Credle  v.  Gibbs, 65  N.  C.  E.  192 89 

Creecy  v.  Pearce, 69  N.  C.  E.    67 492 

Crews  v.  Crews, 64  N.  C.  E.  536 374 

Crisp  v.Love, 65  N.  C.  B.  126 28 

Critcher,  Hicks  v Phil.  L.  E.  353 35     392 

Critcher  v.  McCaden 64  N.  C.  E.  262 416 

Critcher  v.  Holloway, 64  N.  C.  E.  526 409 

Critcher  v.  Hodges, 68  N.  C.  E.     22 344 

Crocker,  Ex  parte, 63  JS.  C.  E.  652 128 

Cromartie  v.  Kemp, 66  N.  C.  E.  382 126 

Cromwell,  Cobb  v Phil.  Eq.  E.    18 96 

Cromwel.,  Norfleet  v 64  N.  C.  E.       1  135 

Cromwell,  Norfleet  v 70  N.  C.  E.  634 118     135 

Cronly  v.  Murphy 64  N.  C.  E.  489 175 

Cronly  v.Hall, 67  N.  C.  E.      9 55 

Crook  v.  Cowan 64  N.  C.  E.  743 106 

Croom  v.  Morisey 63  N,  C.  E.  591 404 

Cross,  Johnson  v 66  N.  C.  E.   167 233 

Crummen  v.  Bennet 68  N.  C.  E.  494 235 

Crump  v.  Mims, 64  N.  C.  E.  767 71     427 

Crump  v.  Faucet, 70  N.  C.  E.  345 127 

Culbreth,  McKenzie  v 66  N.  C.  E.  534   2 

Culver  v.  Eggers, 63  N.  C  E.  630 100    349 

Cummings  v.  Mebane, 63  N.  C.  E.  315 76 

Cummings,  Blackwell  v 68  N.  C.  E.  121   341 

Cunningham  v.  South.  Ex.  Co.,  67  N.  C.  E.  425 405 

Cureton,  Davis  v 70  N.  C.  E.  667 492 

Currin,  Eagland  v 64  N.  C.  E.  355 7C     301 

Custer,  State  v 65  N.  C.  E.  339 483 

Cuthbertson,  Martin  v 64  N.  C.  E.  328 44 

Dalby,  Winston  v 64  N.  C.  E.  299 117 

Dalrymple,  Crawford  v 70  N.  C.  E.  156 450 

Dalton,  Pendleton  v Phil.  Eq.  E.  1 19 97 


XVI  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Dalton,  Pendleton  v 64  N.  C.  R.  329 265 

Dalton,  Houston  v 70  N.  C.  R.  662 3 

Dancy  v.  Braswell, 64  N.  C.  R.  102 441 

Dancy  v.  Pope, 68  N.  C.  R.  147 200 

Dancy  v.  Smith, 68  N.  C.  R.  179 361 

Daniel,  Bynum  v 63  N.  C.  R.    24 387 

Darr,  State  v 63  N.  C.  R.  516 113 

Darwin  v.  Rippy, 63  N.  C.  R.  318 (See  Errata.) 

Dashiel,  Davis  v Phil.  L.  R.  114 463 

Davidson,  Mayhew  v Phil.  Eq.  R.    47 320 

Davidson  v.  Elms, 66  N.  C.  R.  228 361 

Davidson,  State  v 66  N.  C.  R.  119 151 

Davidson,  Bank  of  Charlotte  v. .   70  N.  C.  R.  118 469 

Davidson,  Hayes  v 70  N.  C.  R.  573 . 75 

Davidson  College,  Young  v Phil.  Eq.  R.  261 .835     351 

Davis  v.  Dashiel, Phil.  L.  R.  114 463 

Davis  v.  Shaver, Phil.  L.  R.    18 282    401 

Davis,  Chambers  v Phil.  Eq.  R.  152 314 

Davis  v.  Atkinson, 63  N.  C.  R.  210 (See  errata.) 

Davis,  Wilmington  v 63  N.  C.  R.  582 455 

Davis,  State  v 63  N.  C.  R.  578 163 

Davis,  Wadsworth  v 63  N.  C.  R.  251 385 

Davis  v.  Harris, 64  N.  C.  R.  574 119 

Davis  v.  Hedgececk, 64  N.  C.  R.  650 292 

Davis  v.  Lassiter, 64  N.  C.  R.  498 215 

Davis  v.  Morgan, 64  N.  C.  R.  570 54 

Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 
Dav 


s,  Battle  v 66  N.  C.  R.  252 304 

s,  McMillan  v 66  N.  C.  R.  539 105 

s  v.  Baker, 67  N.  C.  R.  388 137 

s,  Poindexterv 67  N.  C.  R.  112 58 

s,  Reiger  v 67  N.  C.  R.  185 217    396 

s  v.  Davis, 68  N.  C.  R.  180 134 

State  v 68  N.  C.  R.  297 428 

s,  State  v 65  N.  C.  R.  298 294 

s,  Boyleston  In.  Co.  v 68  N.  C.  R.    17 467 

s,  Hix  v 68  N.  C.  R.  231 274 

s  v.  Fox, 69  N.  C.  R.  435 226 

s  v.  Parker, 69  N.  C.  R.  271 131 

s,  Phillips  v 69  N.  C.  R.  117 59  124  178  194 

s,  Shelton  v 69  N.  C.  R.  324 358 

s,  (Ben)  State  v 69  N.  C.  R.  313 212    259 

s,  (Harvy)  State  v 69  N.  C.  R.  495 251     357 

s,  (Mat)  State  v 69  N.  C.  R.  383 357 

s  v  Cureton, 70  N.  C.  R.  667 493 

s,  Boylston  In.  Co.  v 70  N.  C.  R.  485 120 


KAMKS  OF  OASES. 


XVII 


NAMES  OF  PARTIES.  REPORTER. 

Davis,  Johnston  v 70  N.  C.  R.  581 . 

Dawson,  Petteway  v 64  N.  C.  R.  450. 

Dawson,  Flack  v 69  N.  C.  R.    42. 

Day  v.  Adams, 63  N.  C.  R.  254 

Deal,  State  v 64  N.  C.  R.  270 

Deal  v.  Cochran, 66  N.  C.  R.  269 . 

Deal  v.  Palmer, 68  N.  C.  R.  215 . 


R. 
R. 


496.. 

572  . 
R.  428.. 
R.  653.. 

300   . 


Deaton,  State  v 66  N.  C 

Dearer,  State  v 65  N.  C 

Deaver  v.  Keith, Phil.  L. 

Deep  River  M.  Co.,  Martin  v.  . .   64  N.  C 
Deep  River  M.  Co.  v.  Martin, . .   70  N.  C.  R 

Bellinger  v.  Tweed, 66  N.  C.  R.  206 

Den  v.  Love, Phil.  L.  R.  435 

Deloach,  Vaughan  v 65  N.  C.  R.  378 

DeRosset  v.  Bradley, 63  N.  C.  R.     17 

Derr  v.  Wilson, 69  N.  C.  R.  137 

Dcvereux,  Hyman  v 65  N.  C.  R. 

Devereux,  Hyman  v  63  N.  C.  R. 

Devries  v.  Phillips 63  N.  C.  R. 

Devries  v.  Haywood, 63  N.  C.  R. 

Devries  v.  Haywood,    64  N.  C.  R. 

Dewey,  Smith  v 64  N. 

Dewey  v  White, 65  N, 

Dewey,  Isler  v 67  N, 

Dick  v.  Dickson, 63  N 

Dick  v.  McLaurin, 63  N, 

Dickson,  Dick  v 63  N. 

Dickson,  Lattimore  v  63  N.  C 

Dickson  v.  Dickson, 70  N. 

Divine,  State  v 69  N. 

Dixon  v.  Pace, 63  N. 

Dixon,  Kirkham  v  65  N. 

Dixon,  Lattimore  v 65  N.  C.  R. 

Dixon,  Williams  v 65  N.  C.  R. 

Dixon,  Kirkham  v 66  N.  C.  R. 

Doak,  McCnllock  v 68  N.  C.  R.  267 . 

Dobbins  v.  Osborne 67  N.  C.  R.  259 . 

Dobson  v.  Key, Phil.  Eq.  R.  170. 

Dobson,  Harshaw  v 64  N.  C.  R.  384. 

Dobson,  Halyburton  v 65  N.  C.  R.     88 . 

Dobson,  State v 05  N.  C.  It.  346. 

Dobson,  Harshaw  v 67  N.  C.  R.  203 . 

Dockery  v.  French, (59  N.  C.  R.  308 . 

Dodd,  Ex  parte Phil.  Eq.  R.    97. , 


C 
C 
C 
C 
C 
C, 


588. 
624. 
207. 
53 
83. 
R.  463. 
R.  225 . 
93. 
488. 
185. 
488. 
356. 


E. 
R. 
R. 
B. 

R. 

C.  R.  487 
C.  R.  390 
C.  R. 
C.  R. 


PAGE  OF  DIGEST. 

300 

42 

362  421 

41 

429 

461 

288  346 

244 

63 

40 

285 

289 

233 

1 

191 

459 

162 

269  338  419 

380 

153 

214  387 

101 

2(6 

451 

154 

283 

283 

283 

142  366 

131 

24 

9 

113 

386 

473 


299 
158 
338 


603 

179 

664 

416 

406 (see  errata.) 


155 


289 
149 


343 
224 
262 
125 
149 
426 
217 
268 
437 


XVIII  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST, 

Dodd,  Watson  v 68  N.  C.  K.  528 178 

Dodson  v.  Moore 64  N.  C.  R.  512 107 

Doe  v.  Hassell, 68  N.  C.  R.  213 439 

Doe  v.  McLeod 70  N.  C.  R.  364 137 

Dollar,  State  v 66  N.  0.  R.  626 495 

Donnell  v.  Cooke, 63  N.  C.  R.  227 202    365 

Donnell  v.  Donnell Phil.  Eq.  R.  148 474 

Donoho  v.  Patterson, 70  N.  C.  R.  649 195 

Dortch,  Ward  v 69  N.  C.  R.  277 481 

Dougherty  v.  Logan, 70  N.  C.  R.  558 278 

Douglass,  State  v 63  N.  C.  R.  500 284    306 

Douglass  v.  Caldwell, 64  N.  C.  R.  372 380 

Douglass  v.*Caldwell, 65  N.  C.  R.  248 424 

Dowd  v.  Coates, 67  N.  C.  R.  273 122 

Dowd  v.  N.  C.  R.  R.  Co., 70  N.  C.  R.  468 81 

Downs,  Teague  v 69  N.  C.  R.  280 241 

Dozier  v.  Grandy, 66  N.  C.  R.  484 126 

Drake,  State  v 64  N.  C.  R.  589 248    301 

Dudley,  Taylor  v 70  N.  C.  R.  146 156 

Dula,  State  v Phil.  L.  R.  211 166 

Dula,  State  v Phil.  L.  R.  437 167     255 

Dula  v  Young, 70  N.  C.  R.  450 400    481 

Dulin  v.  Howard, 66  N.  C.  R.  433 292 

Dumas,  Heilig  v 65  N.  C.  R.  214 154 

Dumas,  Heilig  v 69  N.  C.  R.  206 155 

Duncan  v.  Philpot, 64  N.  C.  R.  479 452 

Dunlap,  State  v 65  N.  C.  R.  491 253 

Dunlap,  State  v 65  N.  C.  R.  288 170     394 

Dunn  Ex  parte, 63  N.  C.  R.  137 493 

Dunn  v  Nichols, 63  N.  C.  R.  107 180 

Duvall  v.  Rollins, 68  N.  C.  R.  220 234 

Eacker,  Womack  v Phil.  Eq.  R.  161 213 

Eagin  v.  Musgrove, Phil.  L.  R.     13 384 

Earl  v.  Bryan, Phil.  Eq.  R.  278 214 

Earnhardt,  McCorkle  v Phil.  L.  R.  300 484 

Earnhardt,  Sowers  v 64  N.  C.  R.     96 440 

Earp,  Hastings  v Phil.  Eq.  R.      5 322 

Eason  v.  Sanders 65  N.  C.  R.  216 377    419 

Eason,  State  v 70  N.  C.  R.     88 210 

Echard,  Reitzel  v 65  N.  C.  R.  673 491 

Edmiston,  Moore  v 70  N.  C.  R.  510 345    359 

Edmonds,  Harvey  v 68  N.  C.  R.  243 282 

Edwards  v.  Edwards, Phil.  L.  R.  534 132 

Edwards,  Haywood  v Phil.  L.  R.  350 472 

Edwards,  Norton  v 66  N.  C.  R.  367 193 


NAMES  OF  CASES.  XIX 

NAMES  OF  PARTIES.  REPORTER. 

Edwards  v.  Com'rs  of  Wilkes, . .  70  N.  0.  E.  571 .. . 

Eggers,  Culver  v 63  N.  C.  R.  630. . . 

Elam,  State  v Phil.  L.  R.  460. . . 

Elias,  Homesley  v 66  N.  C.  R.  330. . . 

Ellen,  State  v 68  N.  C.  R.  281 

Elliott,  Kerr  v Phil.  L.  R.  601 .. . 

Elliott,  State  v Phil.  L.  R.  104  . . 

Elliott  v.  Logan, Phil.  Eq.  R.  163. . . 

Elliott,  Scott  v 63  N.  C.  R.  215  . . , 

Elliott,  Felton  v 66  N.  C.  R.  195. . . 

Elliott,  State  v 68  N.  C.  R.  124 

Elliott  v.  Roberts, 70  N.  C.  R.  181  . . 

Ellis  v.  Hussey, 66  N.  C.  R.  501 . . . , 

Ellis  v.  Institution  for  Deaf  and 

Dumb, 68  N.  0.  R.  423..., 

Elms,  Davidson  v 67  N.  C.  R.  228 

Emerson  v.  Mallett, Phil.  Eq.  R.  234 ... . 

Engelhard,  Mabry  v 67  N.  0.  R.  877 ... . 

Erwin  v.  Lowery, 64  N.  C.  R.  821 . . . . 

Erwin  v  Lawerance, 64  N.  C.  R.  483 

Erwin  v  Western  N.  C.  R  R.  Co.,  65  N.  C.  R.    79  . . . 

Erwin  v  Lawerance, 70  N.  C.  R.  282 

Estis  v.  Hartley, Phil.  Eq.  R.  167 ... . 

Etheridge,    Capehart  v 63  N.  C.  R.  353 . . . . 

Etheridge  v.  Vernoy, 70  N.  C.  R.  713 . . . . 

Eubanks  v.  Mitchell. 67  N.  C.  R.    34 

Evans,  Broadusv 63  N.  C.  R.  633 

Evans  v.  Singletary,    63  N.  0.  R.  205. . . . 

Evans,  State  v 69  N.  C.  R.    40. . . . 

Excelsior  Oil  Co.,  Mixer  v 63  K  C.  R.  552 

Exch.  Bnk  of  Columbia  v.Tiddy,  67  N.  C.  R.  169  ... 

Exum,  Cogdell  v 69  N.  C.  R.  404. . . . 

Faircloth  v.  Ferrell 63  N.  C.  R.  640 

Fairly,  Wall  v 66  N.  C.  R.  385  ... 

Fairly,  Wall  v 70  N.  C.  R.  537.. . . 

Falkner  v  Hunt, 68  N.  C.  R.  475  .. . 

Falls  v.  McCulloch Phil.  Eq.  R.  140  ... 

Falls,  Lusk  v 63  N.  C.  R.  188. .. . 

Falls  v.  Gamble 66  N.  C.  R.  455. .. . 

Fann,  State  v 65  N.  C.  R.  317 (see  errata.) 

Farmer,  Johnson  v 69  N.  C.  R.  542 %    28 

Farmer,  Reed  v 69  N.  C.  R.  539 '   28 

Farmer's  Bank  v.  Glenn, 68  N.  C.  R.     35 118    300 

Farmer's  Bank,  Glenn  v 70  N.  C.  R.  191 56    384    399 

Farrell,  Johnson  v 64  N.  C.  R.  266 318 


lGE  op  digest. 

334 

373 

100 

349 

51 

119 

209 

136 

473 

218 

425 

22  297 

492 

172 

105 

340 

270 

361 

76 

81 

367 

386 

161 

103 

2 

213 

77 

264 

5 

391 

354 

190 

251 

45 

50 

313 

14 

180 

139 

14 

11   24 

392 

320 

452 

143 

161 

XX  "NAMES  OF  CASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Farrow,  State  v Phil.  L.  R.  161 309 

Faucette,  Bryan  v 65  N.  C.  R.  650   175 

Faucett,  Crump  v 70  N.  C.  R.  345 127 

Faulk,  McKinnon  v 68  N.  C.  R.  279 14 

Fearington,  Carr  v  63  N.  C.  R.  560 328 

Feimster  v.  Johnston, 64  N.  C.  R.  259 208 

Fell  v.  Porter 69  N.  C.  R.  140 293 

Fels,  Sheltonv Phil.  L.  R.  178 182 

Felton,  Madre  v Phil.  L.  R.  279 457 

Felton  v.  Elliott, 66  N.  C.  R.  195 22    297    492 

Felton  v.  Hales, 67  N.  C.  R.  107 44 

Fenner,  Winslow  v Phil.  L.  R.  565   35 

Fentress  v.  Brown, Phil.  L.  R.  373 81 

Fentress,  Hook  v Phil.  Eq.  R.  229 301     484 

Ferebee  v.  Home  In.  Co.,   68  N.  O.  R.    11   157    270 

Ferebee,  Grandy  v 68  N.  C.  R.  356 6    159     161 

Ferguson  v.  Hass, Phil.  Eq.  R.  113 359     376     389 

Ferguson  v.  Hass, 64  N.  C.  R.  772   476 

Ferguson,  State  v 67  N.  C.  R.  219 244     453 

Ferrall.  Harman  v 64  N.  C.  R.  474 126     342 

Ferrell  v.  Boykin, Phil.  L.  R.      9 26 

Ferrell,  Faircloth  v   63  N.  C.  R.  640   180 

Fike  v.  Green 64  N.  C.  R.  665 197 

Finch  v.  Clark Phil.  L.  R.  335 474 

Finch,  Wilkins  v Phil.  Eq.  R.  355  .    ...  196 

Finger  v.  Finger 64  N.  C.  R.  183 190    302 

Finger,  Keener  v 70  N.  C.  R.     35 25     203 

Fish,  Long  v 70  N.  C.  R.  674 11     338 

Fisher  v.  Ritchey 64  N.  C.  R.  172 408 

Fisher,  State  v 70  N.  C  R.     78 313 

Flack,  Dawson  v 69  N.  C.  R.     42 362    421 

Flanner,  Wright  v 64  N.  C.  R.  510 197 

Flemming  v.  Flemming, 63  N.  C.  R.  209 494 

Flemming,  Kingsbury  v 66  N.  C.  R.  524 55 

Flemming,  Walker  v 70  N.  C.  R.  483 413 

Flora,  Parker  v 63  N.  C.  R.  474 57 

Floyd  v.  Herring, 64  N.  C.  R.  409 126     185    186 

Flynt  v.  Conrad Phil.  L.  R.  190 142 

Foard  v.  Alexander, 64  N.  C.  R.     69 185 

Foard,  Heileg  v 64  N.  C.  R.  710 296     299 

Fol#  v.  Comm'rs  of  Pitt, 65  N.  C.  R.    25 447 

Fontaine  v.  Westbrook, 65  N.  C.  R.  528 279 

Forbes,  Whitaker  v 68  N.  C.  R.  228 364 

Ford,  Trammel  v Phil.  Eq.  R.  339 387 

Foreman  v.  Bibb, 65  N.  C.  R.  128 278 


NAMES  OF  CASES.  XXI 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Forsythe,  Waller  v Phil.  Eq.  R.  353  315 

Port  v.  Bank  of  Cape  Fear,  ....  Phil.  L.  R.  417 48 

Fortune,  Jones  v 69  N.  C.  R.  322 139 

Foster  v.  Woodfin, 65  N.  C.  R.     29 11 

Foushee  v.  Pattershol, 67  N.  C.  R.  453 23     392 

Foust  v.  Shoffner Phil.  Eq.  R.  242 98 

Foust,  Brown  v 64  N.  C.  R.  672 442 

Foust  v.  Stafford, 70  N.  C.  R.  115 345 

Fowler,  Bryan  v 70  N.  C.  R.  596 4 

Foy,  Whitford  v 65  N.  C.  R.  265 222 

Foy,  Bunting  v 66  N.  C.  R.  193 3G0     389     492 

Foy,  Isler  v 66  N.  C.  R.  547 139  216  308  423 

Foy,  Bryan  v  69  N.  C.  R.     45 3 

Foy,  Morehead  v 69  N.  C.  R.  512 373 

Foy,  Utleyv 70  N.  C.  R.  303 25      GO    372 

Fox,  Davis  v 69  N.  O.  R.  435 226 

Fraley  v.  Kelly, 67  N.  C.  R.     78 46 

Fraley  v.  March, 68  N.  C.  R.  160 373 

Frankford  v.  Atlantic  Bank, Phil.  L.  R.  199 12    381 

Franklin,  Wilson  v 63  N.  C.  R.  259 40G 

Franklin  v.  Yannoy, 66  N.  C.  R.  145 16 

Freeman,  McMinn  v 68  N.  C.  R.  341 57 

Freeman,  State  v 66  N.  C.  R.  647 258 

French,  Dockery  v 69  N.  C.  R.  308 268 

Frey  v.  Ramsour 66  N.  C.  R.  466 145     479 

Froelick  v.  South.  Express  Co.,  67  N.  C.  R.       1 (see  errata.) 

Fronaberger,  Hood  v 63  N.  C.  R.     35 350 

Fronaberger  v.  Lee, G6  N.  C.  R.  333 292 

Fronaberger  v.  Lewis, 70  N.  C.  R.  456 188    422 

Frost  v.  Naylor 68  N.  C.  R.  325 234 

Fnlford,  State  v Phil.  L.  R.  563 309 

Fulghuni,  Spicer  v 67  N.  C.  R.     18 (see  errata.) 

Fulkerson,  State  v Phil.  L.  R.  233 236     254 

Fuller,  Gibbs  v 66  N.  C.  R.   116 2S0 

Fnlton  v.  Loffn 63  N.  C.  R.  393 215 

F.ilton,  State  v 66  N.  C.  R,  632 306 

Furman  v.  Moore, 64  N.  C.  R,  358 197 

Furniss,  Church  v 64  N.  C.  R.  659 405 

Fntrell  v.  Spivey, 63  N.  C.  R.  526 19 

Gaines,  Herrin  v 63  N.  C.  R,    72 99 

Gainey  v.  Hays, 63  N.  C.  R.  497 158 

G  liilierv.  Gibson, Phil.  L.  R.  530 120 

Gaither  v.  Gibson, 63  N.  C.  R.    93 385 

Galbraith,  Taylor  v 65  N.  C.  R.  409 82 

Galloway^v.  Jenkins, 83  N.  C.  R.  147 84 


XXII  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER. 

Gamble,  Falls  v 66  N.  C.  R.  455  . . 

Gardner  v.  Hall, Phil.  L.  R.    21 . . . 

Gardner,  Rowland  v 69  N.  C.  R.    53 . . . 

Garibaldi  v.  Hallowell, 68  N.  C.  R.  257 . . . 

Garrett  v.   Smith, 64  N.  C.  R.    93 . . . 

Garrett  v.  Trotter, 65  N.  C.  R.  439 . . . 

Garrett  v.  Cheshire, 69  N.  C.  R.  396  . . 

Gashine  v.  Baer, 64  N.  C.  R.  108 . . . 

Gaskill,  Whitehurst  v 69  N.  C.  R.  449 . . . 

Gaskins,  State  v 65  N.  C.  R.  320 

Gaskins,  Price  v Phil.  Eq.  R.  224 .. . 

Gaston,  Rowark  v 67  N.  C.  R.  291 . . . 

Gatling,  Smith  v 64  N.  C.  R.  291 .. . 

Gatling,  Wiley  v 70  N.  C.  R.  410. . . 

Gee  v.  Hines, Phil.  Eq.  R.  315 .. . 

George,  Womble  v 64  N.  C.  R.  759 

Ghormly  v.  Sherrill,  . .  66  N.  C.  R.  527 .. . 

Gibbs  v.  Gibbs, Phil.  L.  R.  471 .. . 

Gibbs  v.  Fuller, 66  N.  C.  R.  116 

Gibbs,  Credle  v 65  N.  C.  R.  192 .. . 

Gibson,  Gaither  v. Phil.  L.  R.  530. . . 

Gibson  v.  Groner, 63  N.  C.  R.     10 . . . 

Gibson,  Miller  v 63  N.  C  R.  635 ... . 

Gibson  v.  Smith, 63  N.  C.  R.  103 .. . 

Gibson,  Gaither  v 63  N.  C.  R.     93 . . . 

Gibson  v.  Pitts, 69  N.  C.  R.  155  . . 

Gifford  v.  Betts, 64  N.  C.  R.     62. . . 

Gilbert,  Collins  v 65  N.  C.  R.  135 ..  . 

Gilbraith  v.  Linebarger 60  N.  C.  R.  145 .. . 

Giles,  Hemphill  v 66  N.  C.  R.  512  . . 

Gillespie,  Hall  v 66  N.  C.  R.  256 . . . 

Gilliam,    Woodley    v 64  N.  C.  R.  649 . . . , 

Gilliam,  McKoy  v 65  N.  C.  R.  130 

Gilliam,    Woodley    v 67  N.  C.  R.  237 

Gilmer,  Smith  v 64  N.  C.  R.  546. . . . 

Gilmer  v  McNairy, 69  N.  C.  R.  335  . . . , 

Glenn  v.   Charlotte  &  S.    C.  R. 

R.  Co., 63  N.  C.  R.  510 

Glenn,  Farmer's  Bank  v 68  K  C.  R.    35 ... . 

Glenn  v.  Farmer's  Bank, 70  N.  C.  R.  191 . . . . 

Glisson,  State  v Phil.  L.  R.  195 ... , 

Gobble,    Hedrick  v Phil.   L.  R.  348 

Gobble,   Hedrick  v 63  N.  C.  R.    48... 

Godwin,  Holmes  v 69  N.  C.  R.  467. . . . 

Goldsborough  v.  Turner, 67  N.  C.  R.  403  . . . 


PAGE  OP  DIGEST. 

143 

161 

82 

362 

385 

321 

407 

365 

235 

37 

465 

311 

326 

114 

281 

400 

328 

198 

303 

220 

280 

89 

120 

181 

458 

99 

385 

194 

101 

416 

6   8 

354 

340 

315 

138 

478 

448 

490 

159 

72 

393 

118 

300 

56  384 

399 

217 

136 

152 

66 

344 

6  391 

486 

NAMES  OE  CASES.  XXIIt 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Gooch,  Kingsbury  v 64  N.  C.  R.  528 374    409 

Gooch  v.  Gregory, 65  N.  C.  R.  142 69     330 

Goodwin,  Rogers  v 64  N.  C.  R.  278 21     343 

Gore  v.  Mastin, 66  N.  C.  R    371 (see  errata.) 

Gorrell,  Woodburne  v 66  N.  C.  R.     82 242 

Gneber,  Long  v 64  N.  C.  R.  431 239 

Graham  v.  Charlotte  &  S.  C.  R. 

R.  Co., 64  N.  C.  R.  631 372 

Graham,  State  v 68  N.  C.  R.  247 397 

Grammar,  Parker  v Phil.  Eq.  R.    28 261 

Granberry,  Ivey  v 66  N.  C.  R.  223 125 

Grandy  v.  Sawyer, Phil.  Eq.  R.      8 314 

Graudy,  Dozierv 66  N.  C.  R.  484 126 

Grandy  v.  Ferebee, 68  N.  C.  R.  356 6     159     161 

Gray,  Cox  v Phil.  L.  R.  488 139 

Gray  v.  Cooper, 65  N.  C.  R.  183 149 

Gray.Oatesv 66  N.  0.  R.  442 281     363 

Green,  Howze  v Phil.  Eq  R.  250 263 

Green,  Waldrop  v 63  N.  C.  R.  344 263 

Green  v.  Brown, 64  N.  C.  R.  553 441 

Green,  Fike  v 64  N.  C.  R.  665 197 

Green,  Horton  v 64  N.  C.  R.     64 153 

Green,  Parham  v 64  N.  C.  R.  436 460 

Green,  Whitesides  v 64  N.  C.  R.  307 148     388 

Green  v.  Moore, 66  N.  C.  R.  425 381     429 

Green  v.  Wynne, 66  N.  C.  R.  531   307 

Green,  Horton  v 66  N.  C.  R.  596 487 

Green  v.  Com'rs  of  Cherokee, . . .  67  N.  C.  R.  117 116 

Green,  Williams  v 68  N.  C.  R.  183 242 

Green  v.  Green, 69  N.  C  R.    25 319     321 

Green  v.  Green, 69  N.  C.  R.  294 421 

Green  v.  Green, 69  N.  C.  R.  204 362 

Green,  Whitehurst  v 69  N.  C.  R.  131 268 

Green  v.  Castleberry, 70  N.  C.  R.    20 421 

Greenlee  v.  Greenlee, 63  N.  C.  R.  593. 458 

Greenlee  v.  Sudderth, 65  N.  C.  R.  470 78     177 

Greenwood,  Chambers  v 65  N.  C.  R.  274 390 

Gregory,  Barham  v Phil.  Eq.  R.  243 315     359 

Gregory,  Gooch  v 65  N.  C.  R.  142 69     330 

Gregory  v.  Gregory, 69  N.  C.  R.  522 352    492 

Gril  v.  Vernon, 65  N.  C.  R.     76 286 

Grier  v.  Bysaner, 63  N.  C.  R.  131 458 

Grier  v.  Rhyne 67  N.  C.  R.  338  38    105 

Grier,  Overman  v 70  N.  C.   &.  693 201 

Griffin  v.  Griffin Phil.  L.  R.  167 210 


XXIV  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Griffis  v.  McNeil, Phil.  L.  R.  1  ^ 382 

Griffis,  Levy  v 65  N.  C.  R.  238 477 

Griffith,  McOombs  v 67  N.  C.  R.     83 442 

Grissett  v.  Smith, Phil.  L.  R.  164 210 

Grissett  v.  Smith, Phil.  L.  R.  297 401 

Grissom  v.  Parish, Phil.  Eq.  R.  330 315 

Grist,  Marsh  v Phil.  Eq.  R.  319 189 

Grist,  Haighfc  v 64  N.  C.  R.  739 457 

Grouer,  Gibson  v 63  N.  C.  R.     10 IfeA 

Groom,  Broadnax  v 64  N.  C.  R.  244 [87 

Gudger  v.  Baird, 66  N.  C.  R.  438 29     360 

Gness  v.  McCauley, Phil.  L.  R.  514 136 

Guion  v.  Melvin, 69  N.  O.  R.  212 405    481 

Gulick,  Russ  v 64  N.  C.  R.  301 2C6 

Gully  v.  Hollo  way, 63  N.  C.  R.     84 321 

Gupton,  Jones  v 65  N.  C.  R.     48 452 

Guthrie,  Mclntyre  v 61  N.  C.  R.  104 335 

Gwynn,  State  v Phil.  L.  R.  445 112 

Haas,  Ferguson  v 64  N.  C.  R.  773 476 

Hadley  v.  Nash, 69  N.  C.  R.  162 27S     486 

Hagans  v.  Huffsteller, 65  K  C.  R.  443 78 

Hager,  Little  v   67  N.  C.  R.  135 321 

Hagler  v.  McCombs, 66  N.  C.  R.  345  202  204  205  300 

Hager  v.  Nixon, 69  N.  C.  R.  108 235 

Haight  v.  Grist, 64  K  C.  R.  739.. . ...  457 

Hairston,  State  v 63  K  C.  R.  451 337 

Halcyon,  Steamboat  Co.,  Rush  v.  67  N.  C.  P.    47 23 

Halcyon,  Steamboat  Co.,  Rush  v    68  N.  C.  R.    72 IS      24 

Hales,  Applewhite  v 65  N.  C.  R.  241 52 

Hales,  Felton  v 67  N.  C.  R.  107 44 

Haley  v.  Haley, Phil.  Eq.  R.  180   .... .  140 

Hall,  Gardner  v Phil.  L.  R.    21 82 

Hall  v.  Thorburn, Phil.  L.  R.  158 12 

Hall  v.  Want, Phil.  L.  R.  502   127 

Hall  v.  Gillespie, Phil.  Eq.  R.  256   315 

Hall,  Beard  v 63  N.  C.  R.     39 438 

Hall,  Werst  v 64  N.  C.  R.    43   60 

Hall,Keslerv 64  N.  C.  R.    60 42 

Hall  v.  Craige, 65  N.  C.  R.    41   271  2f  0  355  419 

Hall,  Walsh  v 66  N.  C.  R.  233 216     371 

Hall,  Baird  v 67  N.  C.  R.  230 80 

Hall,  Cronly  v 67  N.  C.  R.      9 55 

Hall  v  Craige,   68  N.  C.  R.  395 280 

Halyburton  v.  Dobson, 65  N.  C.  R.    88 149 

Hamby,  Calloway  v 65  N.  C.  R.  631   101 


NAMES  OF  CASES.  XXV 


NAMES  OF  PARTIES.  REPORTER. 

Hamilton,  Little  v Phil.  L.  R.    29 

Hamilton,  Myers  v 65  N.  C.  R.  567 

Hamilton,  Justice  v 67  N.  C.  R.  Ill 

Hamilton  v.  Cox, 69  N.  C.  R.    30 

Hamlin,  Reade  v Phil.  Eq.  R.  128 

Hampton  v.  Spainhour, 63  N.  C.  R.  569 

Hampton,  State  v 63  N.  C.  R.    13 

Hampton,  Clemmons  v 64  N.  C.  R    264 

Hampton,  Clemmons  v 70  N.  C.  R.  534 

Haney,  State  v 67  N.  C.  R.  467 

Hanks,  May  v Phil.  Eq.  R.  310 

Hanks,  State  v 66  N.  C.  R.  612 

Hanner,  Ramsay  v 64  N.  C.  R.  668 

Hardee  v.  Williams 65  N.  C.  R.     56 

Hardie,  Poe  v 65  N.  C.  R.  447 

Hardin  v.  Murray 68  N.  C.  R.  534 

Hardin,  Cablev 67  N.  C.  R.  472 

Hardy  v.  Reynolds, 69  N.  C.  R.       5 

Hare,  Harrrll  v 70  N.  C.  R.  658 

Hargrove  v.  Smith Phil.  Eq.  R.  165 

Hargrove,  State  v 65  N.  C.  R.  466 

Hardey  v.  Houston 65  N.  C.  R.  113. .. . 

Hargett,  State  v 69  N.  C.  R.  669 

Harman  v.  Ferrall, 64  N.  C.  R.  474  .    ... 

Harper  v.  Spainhour, 64  N.  C.  R.  629 

Harper  v.  Sudderth Phil.  Eq.  R.  279 

Haper,  State  v 64  N.  C.  R.  129 

Harrelson  v.  Pleasants, Phil.  L.  R.  365 

Hnrrell  v.  Watson, 63  N.  C.  R.  454 

Harrell  v.  Hare 70  N.  C.   EL  658 

Harrington  v.  McLean, Phil.  Eq.  R.  258 .. .  188 

Harrington,  McFadgen  v 67  N.  C.  R.     29 

Harris,  Minor  v Phil.  L.  R.  322 

Harris,  Bunting  v Phil.  Eq.  R.    11 

Harris,  Kilpatrick  v Phil.  Eq.  R.  222 

Harris,  Bessent  v 63  N.  C.  R.  542 

Harris  v.  Hill 63  N.  C.  R.  653 

Harris,  State  v 63  N.  C.  R.       1 

Harris,  Biggs  v 64  N.  C.  R.  413 

Harris  v.  Davis 64  N.  C.  R.  574 

Harris,  State  v 64  N.  C.  R.  127 

Harris  v.  Burwell 65  N.  C.  R.  584 

Harris  v.  Johnson 65  N.  C.  R.  478 

Harris,  Jackson  v 63  N.  C.  R.  261 

Harris,  Burns  v 66  N.  C.  R.  509 

4 


PAGE  OF  DIGEST. 

158 

291 

6 

143 

54 

484 

19 

00 

409 

67 

249 

301 

346 

209 

197 

191 

232 

398 

229  391 

443 

51 

274 

229 

77 

414 

138 

237 

393 

126 

342 

109 

315 

310 

27 

142 

439 

229 

301  366 

376 

354 

335 

314 

97 

9 

276 

168  169 

238 

26 

119 

310 

445 

367 

379 

234 

403 

XXVI  NAMES  OF  OASES. 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Harris,  Burns  v 67  N.  C.  R.  140 234 

Harris,  Birdsey  v 68  N.  C.  R.     92 288 

Harris  v.  Carstaphen 69  N.  0.  R.  416 228 

Harris,  Leach  v 69  N.  C.  R.  532 28 

Harris,  Norwood  v 69  N.  C.  R.  204 14 

Harriss,  Conoley  v 64  N.  C.  R.  662 471 

Harrison,  Aycock  v 63  N.  C.  R.  145 385    450 

Harrison,  Aycock  v 65  N.  C.  R.       8 176 

Harrison,  Murphy  v 65  N.  C.  R.  246 202    299 

Harrison,  Bryan  v 69  N.  C.  R.  151 444 

Harrison,  State  v 69  N.  C.  R.  143 212 

Harrison,  (Buck)  State  v 69  N.  C.  R.  264 398 

Harshaw  v.  McCombs, 63  N.  C.  R.     75 214 

Harshaw,  Combs  v 63  N.  C.  R.  198 109 

Harsbaw  v.  Dobson, 64  N.  C.  R.  384 125 

Harshaw  v.  Woodfin, 64  N.  C.  R.  568 215     370 

Harshaw  v.  McKesson, 65  N.  C.  R.  688 6     102 

Harshaw  v.  McKesson, 66  N.  C.  R.  266 339 

Harshaw  v.  Dobson, 67  N.  C.  R.  203 217 

Harston,  State  v 63  N.  C.  R.  294 147 

Hart,  Carlton  v 63  N.  C.  R.  569 19 

Hart,  Lentile  v 66  N.  C.  R.  421   402 

Hart,  Bank  of  Charlotte  v 67  N.  C.  R.  264 50 

Hartley  v.  Estes, Phil.  Eq.  R.  167 213 

Hartsoe,  Bland  v 65  N.  C.  R.  204 192     199 

Harvey,  Swepson  v 63  N.  C.  R.  106 160     385 

Harvey,  Swepson  v 66  N.  C.  R.  436 368 

Harvey,  Swepson  v 69  N.  C.  R.  387 369 

Haskins  v  Royster, 70  N.  C.  R.  601   106 

Hass,  Ferguson  v Phil.  Eq.  R.  113 359     376     389 

Hassell,  Ward  v 66  N.  C.  R.  389 68 

Hassell,  Simmons  v 68  N.  C.  R.  213 225    439 

Hastings  v.  Earp, Phil.  Eq.  R.      5 322 

Haughton,  State  v 63  N.  C.  R.  491 455 

Haughton  v.  Moroney, 65  N.  C.  R.  124 £8 

Haughton  v.  Newberry, 69  N.  C.  R.  456 66 

Haughton,  McDonald  v 70  N.  C.  R.  393 110 

Haughton  v.  Com'rs  of  Jones, . .   70  N.  C.  R.  466  466 

Hawkins,  Brown  v 65  N.  C.  R.  645 13      38 

Hawkins  v.  House, 65  N.  C.  R.  614 374 

Hawkins,  Brown  v 68  N.  C.  R.  444 39 

Hawes,  State  v 65  N.  C.  R.  301 295 

Hayes,  Cowles  v 67  N.  C.  R.  128 17 

Hayes,  Cowles  v 69  N.  C.  R.  406 282 

Hayes  v.  Davidson, 70  N.  C.  R.  573 75 


NAMES  OF  OASES. 


XXVII 


NAMES  OF  PARTIES. 


KEPOBTER. 


Hayley  v.  Hayley,   Phil.  Eq.  R. 

Haynes,  Cowles  v 67  N.  C.  R. 

Haynes,  Johnston  v 68  N.  C.  R. 

Haynes,  Johnston  v 68  N.  C.  R. 

Haynes,  Johnston  v 68  N.  C.  R. 

Hays,  Gainey  v 63  N.  C.  R. 

Hays  v.  Hays,  .K 64  N.  C.  R. 

Haywood,  Broughton  v Phil.  L.  R. 

Haywood,  State  v Phil.  L.  R. 

Haywood,  Bryan  v 63  N.  C.  R. 

Haywood,  Carroll  v 64  N.  C.  R. 

Haywood,  Devries  v 63  N.  C.  R. 

Haywood,  Devries  v 64  N.  C.  R. 

Haywood  v   Hutchings,. 65  N.  C.  R. 

Haywood,  Kane  v 66  N.  C.  R. 

Hedgecock  v.  Davis, 64  N.  C.  R. 

Heck,  Bryan  v 67  N.  C.  R. 

Hedrick  v.  Gobble, Phil.  L.  R. 

Hedrick  v.  Gobble, 63  N.  C.  R. 

Heidelburg,  State  v 70  N.  C.  R. 

Heileg  v.  Stokes, 63  N.  C.  R. 

Heileg  v.  Foard, 64  N.  C.  R. 

Heileg  v.  Dumas, 65  N.  C.  R. 

Heileg  v.  Dumas, 69  N.  C.  R. 

Helms,  Austin  v 65  N.  C.  R. 

Hemphill  v.  Giles, 66  N.  C.  R. 

Hemphill  v.  Ross, 66  N.  C.  R. 

Henderson,  State  v Phil.  L.  R. 

Henderson,  Mitchell  v 63  N.  C.  R. 

Henderson,  Cansler  v 64  N.  C.  R. 

Henderson,  Cansler  v 65  N.  C.  R. 

Henderson,  State  v 66  N.  C.  R. 

Henderson  v.  Bessent, 68  N.  C.  R. 

Henderson,  State  v 68  N.  C.  R. 

Hennessee,  McKesson  v 66  N.  C  R. 

Henry  v.  Henry, Phil.  Eq.  R. 

Henry  v.  Rich, 64  N.  C.  R. 

Henry,   Osborne  v 66  N.  C.  R. 

Henry  v.  State, 68  N.  C.  R. 

Heron,  Brendle  v 68  N.  C.  R. 

Herren  v.  Gaines, 63  N.  C.  R. 

Herren,  Turpin  v 66  N.  C.  R. 

Herring,  Floyd  v 64  N.  C.  R. 

Herring  v.  Murphy,   70  N.  C.  R. 

Herring  v.  Outlaw, 70  N.  C.  R. 


180. 

128 

509. 

514. 

516. 

497. 

59. 
380.. 
376 
521. 
481. 

53. 

83. 
574. 
1. 
650 
322. 
348. 

48. 
496. 
612. 
710. 
214. 
206. 
560. 
512. 
477. 
229. 
643. 
469 
540. 
627. 
223. 
348 
473. 
334. 
379. 
354. 
465. 
496. 

72 
519. 
409. 
164. 
334, 


PAGE  OF  DIGEST. 
140 

417 

226  420 

222 

290 

158 

380 

68  335 

269 

368 

20 

214  387 

101 

303 

94 

292 

104  346 

136 

152 

34  295 

86  264 

296  299 

154 

155 

336 

340 

340 

51 

36  278 

62 

29 

312 

41  105 

251  300 

267 

376 

179  374 

(See  errata.) 

291 

115  365 

99 

402 

.  126  185  186 

422 

297 


XXVIII  NAMES  OF  CASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Hervey  v.  Edmonds, 68  N.  0.  E.  243 282 

Hettrick,  Shipp  v 63  N.  C.  R.  329 77 

Hewett,  Westcock  v 67  N.  C.  R.  191 (see  errata.) 

Hicks  v.  Critcher, Phil.  L.  E.  353 35    392 

Hicks,  State  v Phil.  L.  E.  441 305 

High  v.  Lack, Phil.  Eq.  E.  175 353 

Hill  v.  BeU, Phil.  L.  E.  122 152    494 

Hill  v.  Kesler, 63  N.  C.  E.  437 232 

Hill,  Harris  v 63  N.  0.  E.  653 276 

Hill,  Jones  v 64  N.  C.  E.  198 339 

Hill,  Powell  v 64  N.  C.  E.  169 467 

Hill  v.  Com'rs  of  Forsythe 67  N.  C.  E.  367 115 

Hill,  Perryv 68  N.  C.  E.  417 157 

Hilliard  v.  Eowland, 68  N.  C.  E.  506 29 

Hilliard  v.  Moore, 65  N.  C.  E.  542 (see  errata.) 

Hines,  Gee  v Phil.  Eq.  E.  315 328 

Hinsdale,  Bates  v 65  N.  C.  E.  423 277 

Hinson  v.  Huggins, Phil.  L.  E.  126 463 

Hinton  v.  Hinton, Phil.  L.  E.  410 84    489 

Hinton  v.  Eiddick Phil.  L.  E.  291 184 

Hinton  v.  Eogers Phil.  Eq.  E.  101 239 

Hinton  v.  Eogers 63  N.  C.  E.     78 240 

Hinton  v.  Hinton, 68  N.  C.  E.     99 481 

Hinton  v.  Whitehurst 68  N.  C.  E.  316 201    205 

Hinton  v.  Hinton, 70  N.  C.  E.  730 188 

Hipp,  Maxwell  v 64  N.  C.  E.     98 440 

Hirsh  v.  Whitehead, 65  N.  C.  E.  516 66    266 

Hislop  v.  Hoover, 68  N.  C.  R.  141 108    270     343 

Hix  v.  Davis, 68  N.  C.  R.  231   274 

Hodges,  State  v Phil.  L.  E.  231   413 

Hodges,  Critcher  v 68  N.  C.  R.    22 344 

Hogan  v.  Hogan, 63  N.  C.  R.  222 316     322 

Hoganv,  Kirkland,    64  N.  C.  R.  250 182 

Hogan,  Kirkland  v 65  N.  C.  R.  144 405 

Hogan  v.  Strayhorn, 65  N.  C.  R.  279 478 

Haywood  v.  Edwards, Phil.  L.  R.  350 472 

Hoke,  Carter  v 64  N.  C.  R  348 264    337 

Holbrook,  Barringer   v  64  N.  C.  R.  540 17 

Holden,  University  R.  R.  v 63  N.  C.  R.  410 85 

Holland  v.  Chandler, Phil.  L.  R.  598 474 

Holland  v.  Clark, 67  N.  C.  R.  104 363 

Holloman,  Valentine  v 63  N.  C.  R  475 45      54     386 

Holloway  v.  Critcher, 64  N.  C.  R.  526 409 

Holloway,  Gully  v 63  N.  C.  R.    84 321 

Hollowell,  Garibaldi  v ». . .  68  N.  C.  R.  251 321 


NAMES  OF  OASES.  XXIX 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Holly,  Wilson  v 66  N.  C.  R.  408 107     154     394 

Holmes  v.  Sackett, 63  N.  C.  R.    58 37 

Holmes,  State  v 63KC.B.    18 305 

Holmes  v.  Godwin, 69  N.  C.  R.  467 66    344 

Home  In.  Co.,  Ferebee  v 68  N.  C.  R.    11   157    270 

Holmesly  v.  Elias, 66  N.  C.  R.  330 119 

Holmesly,  Rowark  v 68  N.  C.  R.    91 31 

Holt,  Rogers  v Phil.  Eq.  R.  108 328 

Holt,  Sapona  Iron  Co.  v 64  N.  C.  R.  335 106 

Holt.Longv 68N.C.R.    53 2      23 

Hoed  v.  Fronebarger, 63  N.  C.  R.    35 350 

Hook  v.  Fentress, Phil.  Eq.R.  229 301     484 

Hooker,  Phillips  v Phil.  Eq.  R.  193 70     109 

Hoover  v.  Thomas, Phil.  L.  R.  184 143 

Hoover  v.  Neighbors, 64  N.  C.  R.  429 28 

Hoover,  Hislop  v 68  N.  C.  R.  141 108    270    343 

Hoppock  v.  Shober, 69  N.  C.  R.  153 278 

Horan,  State  v Phil.  L.  R.  571 247 

Horan,  State  v Phil.  L.  R.  591 309 

Home,  Pond  v 65  N.  C.  R.    84 482 

Hornthall  v.  McRae, 67  N.  C.  R.    21 46 

Horton,  State  v 63  N.  C.  R.  595 246 

Horton  v.  Green, 64  N.  C.  R.    64 153 

Horton,  Peebles  v 64  N.  C.  R.  374 215 

Horton  v.  Green, 66  N.  C.  R.  596 487 

Horton  v.  McCall, 66  N.  C.  R.  159  233 

House,  State  v 65  N.  C.  R.  315 312 

House,  Hawkins  v 65  N.  C.  R.  615 374 

House,  Parker  v 66  N.  C.  R.  374 281 

Houston  v.  Houston,  Phil.  Eq.  R.    95 437 

Houston  v.  Potts, 64  N.  C.  R.    33 4V2 

Houston,  Harkey  v 65  N.  C.  R.  137  138 

Houston,  Walkup  v 65  N.  C.  R.  501 355 

Houston  v.  Potts,   65  N.  C.  R.    41   374 

Houston,  Maxwell  v 67  N.  C.  R.  305 44 

Houston  v.  Dalton, 70  N.  C.  R.  662 3 

Howard  v.  Beatty,  64  N.  C.  R.  559 374     141 

Howard  v.  Kimball, 65  N.  C.  R.  175 59 

Howard,  Dulin  v 66  N.  C.  R.  433 292 

Howard,  State  v 67  N.  C.  R.    24 244 

Howell,  Powell  v 63  N.  C.  R.  283   302 

Howell  v.  Watson, 63  N.  C.  R.  454 57 

Howell  v.  Buie, 64  N.  C.  R.  446 327 

Howell  v.  Barnes, 04  N.  C.  R.  626 284 

Howell,  Jenkins  v 65  N.  C.  R.    61 453 


XXX  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER. 

Howell,  Lee  v 69  N.  C.  R.  200 

Howerton  v.   Sprague, 64  N.  C.  R.  451   

Howerton  v.    Tate, 66  N.  C.  R.  231 

Howerton  v.  Tate, 70  N.  C.  R.  161 

Howerton  v.  Tate, 66  N.  C.  R.  431 

Howerton,  Stokes  v 67  N.  C.  R.     50 

Howerton  v.  Lattimer, 68  N.  C.  R.  370 

Howes  v.  Manney, 66  N.  C.  R.  218 

Howey  v.  Miller, 67  N.  C.  R.  459 

Howie  v.  Rea 70  N.  C.  R.  559 

Howze  y.  Green, Phil.  Eq.  R.  250 

Hoyle  v.  Whittemore 67  N.  C.  R.  252 

Hubbard,  Morgan  v  66  N.  C.  R.  394 

Hubbs,  Patterson  v  65  N.  C.  R.  119 

Hubbs,  Bryan  v 69  N.  C.  R.  423 

Hudgins  v.  White, 65  N.  C.  R.  393 

Hudson,  Beaid  v Phil.  L.  R.  180 

Huffsteller  v.  Hagans, 65  N.  C.  R.  443 

Huffsteller,  Clerk's  Office  v 67  N.  C.  R.  449 ..... . 

Hnggius  v.  Hinson, Pnil.  R.  L.  126 

Hughes  in  re Phil.  L.  R.     57 

Hughes,  Kingsbury  v Phil.  L.  R.  328 

Hughes  v.  Pipkin, Phil.  L.  R.       4 

Hughes  v.  Person, 63  N.  C.  R.  548 

Hughes,   Brower  v 64  N.  C.  R.  642 

Hughes  v  Smith, 64  N.  C.  R.  493 

Hughes  v.  Wheeler, 65  N.  C.  R.  418 

Hughes  v.  Merritt, 67  N.  C.  R.  386 

Hughes,  Martin  v 67  N.  C.  R.  293 

Humphries  v.  Shaw, 63  N.  C.  R.  341   

Humphrey  v.  Wade, 70  N.  C.  R.  280   

Huntv.   Sneed, Phil.  Eq.  R.  351    

Hunt  v.  McKesson, 64  N.  C.  R.  502 

Hunt,  Patton  v 64  N.  C.  R.  163 

Hunt  v.  Sneed, 64  N.  C.  R.  176 

Hunt  v.  Sneed. 64  N.  C.  R.  180 „ 

Hunt,  White  v 64  N.  C.  R.  496 

Hunt,  Falkner  v 68  N.  C.  R.  475 

Hunt,  Smith  v   68  N.  C.  R.  482 

Hunter,  Branch  v Phil.  L.  R.       1 

Hurdle  v.  Leath, 63  N.  C.  R.  366 

Hurdle  v.  Leath, 63  N.  C.  R.  597 

Hussey,  Ellis  v 66  N.  C.  R.  501 

Hutchings,  Haywood  v 65  N.  C.  R.  574 

Hutchins,  Pullen  v 67  N.  C.  R.  428 


JE  OV  DIGEST. 

227 

265 

460 

332 

350 

405 

341 

159 

397 

267 

291 

184 

108 

263 

130 

161 

346 

25  176 

451 

286 

26 

78 

114 

463 

82 

205 

384 

185 

30 

148 

366 

494 

362 

492 

234 

128 

304 

262 

383 

20  119 

468 

295 

297 

36 

.11   24 

392 

235 

129 

146 

880 

221 

340 

303 

324 

tf  AMES  OF  OASES.  XXXI 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Hutchison,  Phelan  v Phil.  Eq.R.  11G 272     352 

Hutchison,  Sprinkle  v 66  N.  C.  R.  459 3G8     297 

Hutchison  v.  Synions, 67  N.  C.  R.  156 183 

Hutchison  v.  Roberts, 67  N.  C.  R.  223 3G1 

Hutchison  v.  Smith, 68  N.  C.  R.  257 159 

Hutchison  v.  Smith, 68  N.  C-  R.  354 3('4 

Hyman  v.  Devereux,    63  N.  C.  R.  624 338     380 

Hyman  v.  Devereux, 65  N.  C.  R.  588 2G9    419 

Hyman  v.  Jarnigan, 65  N.  C.  R.    96 192 

Ijams  v.  Ijams Phil.  Eq.  R.    39 261 

Ingram,  Covington  v 64  N.  C  R.  123 377 

Inst,  for  D.  &.  D.  &  B.,  Ellis  v.  68  N.  C.  R.  243 270 

Insurance  Co.,  Coniglaud  v Phil.  Eq.  R.  341 Ill 

Insurance  Co.,  Bobbitt  v 66  N.  C.  R.     70 271 

In  the  matter  of  Rhodes, 65  N.  C.  R.  518 93 

In  the  matter  of  Schenck, 65  N.  C .  R.  353 42 

Ireland  v.  Tapscott, 68  N.  C.  R.  300 356    453 

Isenhour  v.  Isenhour 64  N.  C.  R.  640 148 

Isler  v.  Whitfield Phil.  L.  R.  493 127 

Isler  v.  Kennedy, 64  N.  C.  R.  530 335 

Isler  v.  Andrews, 66  N.  C.  R.  552 448 

Isler  v.  Brown 66  N.  C.  R.  556 180 

Isler  v.Foy, 66  N.  C.  R.  547. .  .139    216    308     423 

Isler  v.  Brown, 67  N.  C.  R.  175 375 

Isler  v.  Dewey, 67  N.  C.  R.     93 154 

Isler  v.  Moore, 67  N.  C.  R.     74 448 

Isler  v.  Brown, 69  N.  C.  R.  125. 289 

Israel  v.  Ivey, Phil.  L.  R.  551 298 

Israel  v.  King, 69  N.  C.  R.  373 187 

Ivery,  Israel  v Phil.  L.  R.  551 298 

Ivey  v.  Granbery, 66  N.  C.  R.  223   125 

Jackson  v.  Harris, 63  N.  C.  R.  261 379 

Jackson  Ex  parte, 63  N.  C.  R.  309 92 

Jackson  v.  Spivey, 63  N.  C.  R.  261 214 

Jackson,  Purvis  v 69  N.  C.  R.  474 70     279     364 

Jackson,  State  v 65  N.  C.  R.  305 311 

Jacobs  v.  Burgwyn, 63  N.  C.  R.  193 283 

Jacobs  v.  Burgwyn, 63  N.  C.  R.  196 283 

Jacobs  v.  Smallwootl, 63  K  C.  R.  112 232 

James,  Teague  v 63  N.  C.  R.    91 385 

James  v.  Long, 68  N.  C.  R.  218 220 

Jamieson,  Brem  v 70  N.  C.  R.  566 450 

Jarman  v.  Saunders, 64  N.  C.  R.  367 265  266  285  443 

Jarman,  Saunders  v C7  N.  C.  R.    86 443 

Jarman  v.  Ward, 07  N.  C.  R.    32 66 


XXXII  NAMES  OF  CASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Jarnigon,  Hyinan  v 65  N.  C.  R.    96 192 

Jarrett,  Jenkins  v * 70  N.  C.  R.  255 108 

Jarrett  v.  Martin 70  N.  C.  R.  459 462 

Jarrett  v.  Wilson, 70  N.  C.  R.  401  and  403  118 

Jarvis,  State  v 63  N.  C.  R.  556 246    310 

Jefferson,  State  v 66  N.  C.  R.  309 22      65     258 

Jenkins,  Burroughs  v Phil.Eq.  R.    33 158    213 

Jenkins,  Galloway  v 63  N.  C.  R.  147 84 

Jenkins,  Bank  of  Charlotte,. . . .  64  N.  C.  R.  719 21     460 

Jenkins  v.  Briggs, 65  N.  C.  R.  159 160    453    468 

Jenkins,  Northwestern  N.  C.  R. 

R.  Co.  v 65  N.  C.  R.  173 331 

Jenkins  v  Howell, 65  N.  C.  R.    68 453 

Jenkins  v.  N.  C.   Ore  Dressing 

Co., 65  N.  C.  R.  563 367     389 

Jenkins,  Bayne  v 66  N.  C.  R.  356 333 

Jenkins,  Raleigh  &  A.  A.  L.  R. 

R.Co.v 68N.C.R.499 410 

Jenkins,  Raleigh  &  A.  A.  L.  R. 

R.  Co.  v 68  N.  C.  R.  502 334 

Jenkins  v.  Beal, 70  N.  C.  R.  440 356 

Jenkins  v.  Conley 70  N.  C.  R.  353 337 

Jenkins  v.  Jarrett 70  N.  C.  R.  255 108 

Jenkins,  McAden  v 64  N.  C.  R.  796 '484 

Jerkins  v.  Carter 70  N.  C.  R.  500 204    29S 

Johnson,  McArtlmr  v Phil.  L.  R.  317 124 

Johnson,  State  v Phil.  L.  R.  140 428 

Johnson,  State  v Phil.  L.  R.  186 63 

Johnson  v  Crawford, Phil.  L.  R.  342 147 

Johnson  v  Osborne, Phil.  Eq.  R.    59   320 

Johnson  v.  Judd, 63  N.  C.  R.  498 386 

Johnson,  Tayloe  v 63  N.  C.  R.  381 316 

Johnson  v.  Winslow 63  N.  C.  R.  552 86 

Johnson  v.  Farrell, 64  N.  C.  R.  266 318    326 

Johnson  v.  Feimster, 64  N.  C.  R.  259 208 

Johnston  v.  McArthur 64  N.  C.  R.  675 71 

Johnson,  State  v 64  N.  C.  R.  581 293 

Johnson  v.  Winslow, 64  N.  C.  R.     27 (See  errata.) 

Johnson,  Bullard  v 65  N.  C.  R.  436 13 

Johnson,  Harris  v 65  N.  C  R.  478 367 

Johnson  v.  Mangum, 65  N.  C.  R.  146 189 

Johnson  v.  Neville 65  N.  C.  R.  677 138     139    365 

Johnson,  Sellars  y 65  N.  C.  R.  104 103 

Johnson  v.  Sedberry 65  N.  C.  R.      1 277    433 

Johnson  v.  Cross, 66  N.  C.  R.  167 233 


NAMES  OF  CASES.  XXXIII 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Johnson,  Wesson  v 66  N.  C.  R.  18? 89     377 

Johnson,  State  v 07  N.  C.  R.     55 258 

Johnson  v.  Farmer, G9  N   C.  E.  542 28 

Johnson,  Kenedy  v 09  N.  C.  E.  249 139     403 

Johnson,  Lewis  v 09  N.  C.  E.  392  114 

Johnson,  Alexander  v 70  N.  C.  E.  295 69 

Johnson  v.  Kenned}', 70  N.  C.  E.  435 454 

Johnston,  Osborne  v 05  N.  C.  E.     22 02     378 

Johnson  v.  Com'rs  of  Cleaveland,  07  N.  C.  E.   101 333 

Johnston,  Lewis  v 07  N.  C.  E.     38 113 

Johuston  v.  Haynes, 08  N.  C.  E.  509 226    420 

Johnston  v.  Haynes, OS  N.  C.  E.  514 226 

Johnston  v.  Haynes, OS  N.  C.  R.  510 290 

Johnston  v.  Neville, 08  N.  C.  E.   177 14     302 

Johnston,  People  v 68  N.  C.  R.  471 348    349 

Johnston  v.  Davis, 70  N.  C.  E.  581 300 

Johnston  v.  Rankin, 70  N.  C,  E.  550 -  91     471 

Johnston,  At,  Ten.  &  Ohio  E.E. 

Co.  v 70  N.  C.  E.  348 413 

Johnston,  Walker  v 70  N.  C.  E  570 319 

Jones,  Newbern  v 03  N.  C.  B.  GOG 41 

Jones,  Alspaugh  v 04  iN.  C.  E.     29 41 

Jones,  Badham  v 64  N.  C.  E.  055 176 

Jones,  Black  v 64  N.  C.  E.  318 409 

Jones  v.  Hill, 04  N.  C.  E.  198 339 

Jones  v.  McClair, 64  N.  C.  R.  125 404 

Jones  v.  Gupton, 65  N.  C.  E.    48 452 

Jones,  Steadman  v 65  N.  C.  E.  388 17      45     416 

Jones,  Badger  v 66  N.  C.  R.  305 186 

Jones,  McKesson  v 06  N.  C.  R.  258 54  79  154  308 

Jones  v.  N.  C.  R.  E.  Co., 67  N.  0.  R.  123 174 

Jones,   Powell  v 67  N.  C.  E.  126 485 

Jones,  State  v 69  N.  C.  R.  304 259 

Jones,  State  v 67  N.  C.  R.  211 244 

Jones,  State  v 65  N.  C.  R.  395 311 

Jones,  State  v G7  N.  C.  R.  285 396 

Jones,  Carrier  v  68  N.  C.  R.  127  423 

Jones,  Carrier  v 68  N.  C.  R.  130 343 

Jones,  Cheatham  v 68  N.  C.  R.  153 234 

Jones,  State  v 68  N.  C.  R.  443 154 

Jonep,  Porter  v 68  N.  C.  R.  320   115 

Jones,  Shields  v 68  N.  C.  R.  488 201 

Jones,  Clayton  v 08  N.  C.  R.  497 340     306 

Jones  v.  Badger, 60  N.  C.  R.  305   297 

Jones  v.  Com'rs  of  Bladen, 69  N.  C.  R.  412  373 

5 


XXXIV  NAMES  OF  OASES. 

NAMBS  OP  PARTIES.  REPORTER. 

Jones  v.  Fortune, 69  N.  C.  R.  322 . . . 

Jones,  State  v 69  N.  C.  R.  364. . . 

Jones,  State  v 69  N.  C.  R.    16. . . 

Jones  v.  N.  C.  R.  R.  Co., 70  N.  C.  R.  626 

Jones,  Mayfield  v 70  N.  C.  R.  536 . . . 

Jones,  State  v 70  N.  C.  R.    75 . . . 

Jones  v.  Wagoner, 70  N.  C.  R.  322 . . . 

Jones  v.  Woods, 70  N.  C.  R.  447. . . 

Jordan,  Walton  v 65  N.  C.  R.  170. . . 

Jordan,  Woody  v 69  N.  C.  R.  189 . . . 

Jordan  v.  Coffield, 70  N.  C.  R.  110. . . 

Jordan,  Neighbors  v 70  N.  C.  R.  406. . . 

Josey,  State  v 64  N.  C.  R.    56. . . 

Joyner,  Patrick  v 63  N.  C.  R.  573 

Joyner  v.  Speed, 68  N.  C.  R.  236. . . 

Judd,   Johnson  v 64  N.  C.  R.  498. . . 

Jurney  v.  Cowan, 67  N.  C.  R.  393 

Justice  v.  Hamilton, 67  N.  C.  R.  Ill . . . 

Kane  v.  McCarthy, 63  N.  C.  R.  209. . . 

Kane  v.  Haywood, 66  N.  C.  R.      1 . . . 

Kearzey,   State  v Phil.  L.  R.  481... 

Keaton,  Chipley  v 65  N.  C.  R.  534. . . 

Kesler  v.  Newbern, Phil.  L.  R.  505 .. . 

Keener  v.  Finger, 70  N.  C.  R.    35... 

Keerans  v.  Brown, 69  N.  C  R.    43 . . . 

Keeter,  Carpenter  v 65  N.  C.  R.  475  . . 

Keith,  Deaver  v Phil.  L.  R.  428. . . 

Keith,  Rice  v 63  N.  C.  R.  319 . . . 

Keith,  State  v 63  N.  C.  R.  140. . . 

Kelly,  Fraley  v 67  N.  C.  R.    78. . . 

Kemp,  Cromartie  v 66  N.  C.  R.  382. . . 

Kendall,  Oates  v 67  N.  C.  R.  241 . . . 

Kennedy,  Charles  v 64  N.  C.  R.  442. . . 

Kennedy,  Isler  v 64  N.  C.  R.  530  . . . 

Kennedy  v.  Johnson, 69  N.  C.  R.  249 

Kennedy,  Johnson  v 70  N.  C.  R.  435 . . . 

Kent,  Statev 65  N.  C.  R.  311... 

Kerns  v.  Wallace, 64  N.  C.  R.  187  . . . 

Kerr  v.  Elliott, Phil.  L.  R.  601 .. . 

Kessler,  Hill  v 62  N.  C.  R.  437. .. 

Kessler  v.  Hall, 64  N.  C.  R.    60. .  . 

Kessler,  School  Committee  v. ...  66  N.  C.  R.  323  . . 

Kessler  v.  Smith, 66  N.  C.  R.  154 . . . 

Kessler,  School  Committee  v.. . .  67  N.  C  R.  443 121 

Ketchey,  State  v 70  N.  C.  R.  621 . . . 


PAGE  OP  DIGEST. 

139 

458 

290 

403 

5 

375 

206 

235 

327 

178 

369  372 

405 

261 

204 

257 

264 

492 

386 

480 

6 

342 

94 

255 

309 

354 

174 

348 

25 

203 

174 

129 

40 

148 

15 

46 

126 

157 

363 

129 

335 

139 

403 

454 

170  311 

335 

77 

191 

136 

232 

42 

22 

120 

457 

121  123 

444 

91  154  260  807 

FAMES  OF  CASES. 


XXXV 


KAifBG  9V  PARTIES. 

Key  v.  Dobson,    . . . ,, . , , , 

Kidd  v.  Morrison, «  > « . 

Kilpatrick  v.  Harris, 

Kimball,   State  v 

Kimball  v.  Howard, 

Kincade  v.  Conley, 

Kincade  v.  Lowe, 

Kincade  r,  Perkins, 

KiflCade  v,  Conly, 

King  v.  Little, ...,..,, 

King,  Little  v ,,,... 

King  v.  Com'rs  of  Lincoln, .... . 
King  v.  Wilmington  &  W.  R.  R. 

Co., 

King  v.  Winant, 

King,  Israel  v 

King,  State  v 

King,  Bell  v 

King  r.  Weeks, 

Kingsbury  v.  Hughes, 

Kingsbury  v.  Qooch, 

Kingsbury  v.  Lyon, 

Kingsbury  v,  Chatham  R.  R.  Co. 

Kingsbury  v,  Fleming, 

Kingsbury  r.  Suit, 

Kirby  v.  Mastiu, , 

Kirkland  v.  Manguni 

Kirkland,  Hogan  v 

Kirkland  v.  Hogan, 

Kirkham,  State  v  

Kirkman  v.  Dixon, 

Kirkham  v.  Dixon, 

Kivett  v.  Massey, 

Klutts  v.  McKenzie 

Knight  v.  Braswell, 

Knox,    State  v 

Kornegay  v.  Collier, 

Krebs,  State  v 

Lack,  High  v 

Lackey  v.  Miller, 

Ladd,  Adams  v 

Lamb,  State  v  

Lambeth  v.  N.  C.  R.  R.  Co., .  . . 
Land  &  \*  umber  Co.,  Miller  v. 
I  Aiidifi,  York  /..  „ 


REPORTER.  PAGE  OF  DIGEST. 

Phil.  Eq.R.  170 262 

Phil.Eq.  R.  31 112 

Phil,  Eq.R.  222 97 

64  N.  C.  R.  604 329 

65  N.  C.  R.  175 59 

Phil.  Eq.  R.  270 301 

Phil.  Eq.R.  42 173 

63  N.  C.  R.  282 326 

64  N.  C.  R.  387 188  302 

Phil.  L.  R.  484 124 

64  N.  C.  R.  361 125 

05N.  C.  R.  603 89 

66  N.  C.  B.  277 80   89 

68  N.  C.  R.  63 364 

69  N.  C.  R.  373 187 

69  N.  C.  R.  419 31 

70  N.  C.  R.  330 298 

70  N.  C.  R.  372 481 

Phil.  L.  R.  328 384 

64  N.  C.  R.  528 374  409 

64  N.  C.  R.  128 77 

06  N.  C.  R.  284 372 

66  N.  C.  R.  524 55 

66  N.  C.  R.  601 55 

70  N.  C.  R.  540 160 

Phil.  L.  R.  177 146 

64  N.  C.  R.  250 182 

65  N.  C.  R.  144 405 

63  N.  C.  R.  246 168 

65  N.  C.  R.  179 113 

66  N.  C.  R.  406 (see  errata  ) 

63  N.  C  R.  240 81 

65  N.  C.  R.  102 386  419 

70  N.  C.  R.  709 61  237 

Phil.  L.  R,  312 254  357 

65  N.  C.  R.  69 425 

64  N.  C.R.  604 329 

Phil.  Eq.  R.  175 353 

Phil.  L.  R.  26 48 

66  N.  C.  R.  164 233 

65  N.  C.  R.  419 211 

66  N.  C.  R.  494 73 

66  N.  C.  R.  503 7 

65  N.  C.  R.  535 461 


XXXVI  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER. 

Lane  v.  Stanley,  .• 65  N.  C.  R.  153 

Langley,  Nobles  v 66  N.  C.  E.  287 

Larkins  v.  Murphy, 67  N.  C.  R.  381 .. . 

Lash,  Powell  v 64  N.  C.  R.  456 .. . 

Lassiter  v.  Wood, 63  N.  C.  R.  360 

Lassiter  v.  Davis, 64  N.  C.  R.  498 . . . 

Lassiter  v.  Phillips, 70  N.  0.  R.  462 .. . 

Latham  v.  Skinner, Phil.  Eq.  R.  292 . . . 

Latham,  Stone  v 68  N.  C.  R.  421 

Latham  v.  Whitehurst, 69  N.  C.  R.     33 . . . 

Latham  v.  Bell, 69  N.  C.  R.  135 

Latham  v.  Blakely 70  N.  C.  R.  368 .. . 

Lathrop,  Young  v 67  N.  C.  R.     63  . . . 

Lattimer,  Howerton  v 68  N.  C.    it.  370 .. . 

Lattimore  v.  Dixon, 63  N.  C.  R.  356 ..  . 

Lattimore  v.  Dixon,   65  N.  C.  R.  664 . . . 

Lawrence  v.  Morrison 68  N.  C.  R.  162 .. . 

Lawrence  v.  Steele, 66  N.  C.  R.  584 .. . 

Lawrence,  Erwin  v  70  N.  C.  R.  282 

Laws  v.  Rycrof t, 64  N.  C.  R.  100 ..  . 

Lawson,  State  v '  Phil.  L.  R.     47 . . . 

Laxton  v.  Tilly, 66  N.  C,  R.  327 .. . 

Lea,  Neal  v 64  N.  C.  R.  678 

Leach  v.  West.  N.  C.  R.  R.  Co.,  65  N.  C.  R.  486  . . 

Leach,  McLean  v 68  N.  C.  R.     95 . .  . 

Leach  v.  Harris, 69  N.  O.  R.  532  .. . 

Leak  v.  Moorman, Phil.  L.  R.   168 .. . 

Leak,  State  v Phil.  L  R.  450... 

Leak  v.  Com'rsof  Richmond,. . .  64  N.  C.  R.  132 . . . 

Leak,  Covington  y. 67  N.  C.  R.  363 . .  . 

Leath,  Hurdle  v 63  N.  C.  R.  366  .. . 

Leath,  Hurdle  v 63  N.  C.  R.  597 .. . 

Ledbetter  v.  Anderson,    Phil.  Eq.  R.  323. . . 

Ledbetterv.  Com'rsof  Chatham,  66  N.  C.  R.  486... 

Ledbetter  v.  Osborne, 66  N.  C.  R    379 .. . 

Ledford,  State  v 67  N.  C.  R.     60. . . 

Lee,  Wilder  v 64  sS.  C.  R.     50. . . 

Lee,  Froneberger  v 66  N.  C.  R.  333 .. . 

Lee  v.  Pearce 68  N.  C.  R      76 

Lee  v.  Pearce, 63  N.  C.  R.     70 

Lee  v.  Howell, 69  N.  C.  R.  200 .. . 

Leffler  v.  Rowland, Phil.  Eq.  R.  143 . . . 

Leggett  v.  Leggett, 66  N.  C.  R.  420. . . 

Leggett,  Watts  v 66  N.  C.  R.  197. . . 

Lemly  v.  Atwood, 65  N.  C.  R.     46. . . 


PAGE  OP  DIGEST. 

472 

427 

420 

336 

317 

215 

151 

302 

485 

439 

91 

387 

194 

208 

216 

159 

397 

142 

366 

386 

225 

173 

395 

2 

440 

162 

122 

370 

445 

281 

372 

200 

371 

28 

36 

236 

407 

415 

224 

380 

221 

59 

177 

331 

287 

417 

312 

265 

292 

218 

300 

218 

300 

227 

324 

3S8 

233 

222 

NAMES  OF  OASES. 


XXXVII 


NAMES  OF  PARTIES. 

Lentile  v.  Hart, 

Levy  v.  Griffis, 

Lewis  v.  Wilkins, 

Lewis,  Ransom  v 

Lewis,  Eobeson  v 

Lewis  v.  McNatt, 

Lewis  v.  Johnston, 

Lewis  v.  Sloan, 

Lewis  v.  Johnson, 

Lewis,  Setzer  v 

Lewis,  Froneburger  v 

Lilly,   Bates  v 

Lilly  v.  Corn'rs  of  Cumberland,. 

Lindsey,  State  v 

Lineberger,  MeKee  v 

Lineberger,  Gilbraith  v 

Lineberger,  Carson  v 

Link  v.  Brooks, 

Linker  v.  Long, 

Linker  v.  Benson, 

Linkhow,   State  v 

Lippard  v.  Roseman. 

Lipscomb  v.  Cheek, 

Little,  King  v 

Little  v.  Hamilton, 

Little  v.  Martin, 

Little  v.  Little, 

Little  v.  Stanback, 

Little  v.  King, 

Little  v.  Hager, 

Littlefield,  Backalan  v 

Locust,  State  v 

Loftin  v.  Sowers, 

Loftis,  Fulton  v 

Loftis  v.  Raxter, 

Logiin,  Elliott  v 

Logan,  Love  v 

Logan,  Dougherty  v 

Logan  v.  Pluminer,    

Long,  Cherry  v 

Long  v.  Graeber, 

Long,  Linker  v 

Long,  Jlodc  v 

bong  v.  Person,   

Long  v.  Cole, 


REPORTER.  PAGE  OF  DIGEST. 

66  N.  C.  R.  421 402 

65  N.  C.  R.  236 477 

Phil.  Eq.  R.  303 98  425 

63  N.  C.  R.  43  ... .  136 

64  N.  C.  R.  734 21  156 

65  N.  C.  R.  63 307  367 

67  N.  C.  R.  38 113 

68  N.  C.  R.  557 47  398 

69  N.  C.  R.  392 114 

69  N.  C.  R.  133 186 

70  K  C.  R.  456 188  422 

65  N.  C.  R.  232 451 

69  N.  C.  R.  300 465 

Phil.  L.  R.  468  32  252 

69  K  C.  R.  217 155  449 

69  N.  C.  R.  145 6    8  354 

70  K  C.  R.  173 399 

Phil.  L.  R.  499 64 

64  N.  C.  R.  296  120 

67  N.  C.  R.  150 423 

69  N.  C.  R.  214 245 

70  N.  C.  R.  34 421 

Phil.  L.  R.  332 81 

Phil.  L.  R.  484  124 

Phil.  L.  R.  29 158 

Phil.  L.  R.  240 210 

63  N.  C.  R.  22 133 

63  N.  C.  R.  2S5 336 

64  N.  C.  R.  361 125 

67  N.  C.  R.  135 321 

64  N.  C.  R.  233 3S 

63  N.  C.  R.  574 19  113 

65  N.  C.  R.  251  447 

63  N.  C.  R.  393  215 

66  X.  C.  R.  340 113 

Phil.  Eq.  R.  163 213 

69  N.  C.  R.  70 2.7 

70  N.  C.  R.  558 278 

70  N.  C.  R.  388 58 

Phil.  L.  R.  466 ]  0  i 

64  N.  C.  R.  431  239 

64  N.  C.  R.  296 120 

64  N.  C.  R.  433 378 

63  N.  O.  R.  530 30 

60  N.  C.  It.  381 377 


XXXVIII  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Long,  Cox  v 69  N.  C.  R.      7 488 

Long  v.  Holt, 68  N.  C.  R.    53 2      23 

Long  v.  Pool, 68  N.  C.  R.  479 9     398 

Long,  James  v 68  N.  C.  R.  218 220 

Long  v.  Fisb, 70  N.  C.  R.  674 11     P.88 

Lookabill,  Stith  v 68  N.  C.  R>  227 175 

Love,  Den  v Phil.  L»  Rt  439 . . , » , .  1 

Love  v.  Cobb, 63  N,  C.  R.  824 99     109     §63 

Love  v.  Com'rs  of  Chatham, ....  64  N.  C.  R.  706 115    366 

Love,  Smith  v 64  N.  C.  R.  439 107 

Love,   Crisp  v 65  N.  C.  R.  126 28 

Lore  v.  Moody, 68  N.  C.  R.  200 344 

Love  v.  Logan, 69  N.  C.  R.    70 227 

Lovev.  Yancy, 69  N.  C.  R.    65 39     384 

Lovenier  v.  Pearce, 70  N.  C.  R.  167 195 

Lowe,  Kincaid  v Phil.  Eq.  R.    42 173 

Lowe,  Sullivan  v 64  N.  C.  R.  500 69 

Lowe,  Turner  v 66  N.  C.  R.  413 307 

Lowe  v.  Com'rs  of  Davidson, ...  70  N.  C.  R.  532 268 

Lowery,  Erwin  v 64  N.  C.  R.  321 367     386 

Lowery  v.  Lowery, 64  N.  C.  R.  110 490 

Lowhorne,  State  v 66  N.  C.  R.  638 4     164 

Lowrance,  Erwin  v 64  N.  C.  R.  488  161 

Ludwick,    State  v Phil.  L.  R.  401 166     167 

Lupton,  State  v 63  N.  C.  R.  483  112 

Lusk  v.  Falls, 63  N.  C.  R.  188 452 

Lusk  v.  Clayton, 70  N.  C.  R.  184 30 

Lusk  v.  Patton, 70  N.  C.  R.  701 357 

Lute  v.  Reilly, 65  N.  C.  R.     20   232 

Lutterloh  v.  Com'rs  of  Cumber- 
land,    65  N.  C.  R.  403 331 

Lutz,  State  v 65  N.  C.  R.  502 464 

Lutz  v.  Yount, Phil.  L.  R.  367 ... .  44  144  147  392  406 

Lynam  v.  Califer, 64  N.  C.  R.  572 302 

Lynch  v.  Lynch, Phil.  Eq.  R.    46 133 

Lyon,  Kingsbury  v 64  N.  C.  R.  128 77 

Lytle,   State  v 64  N.  C.  R.  255 133     211 

Lytle,  Crawford  v 70  N.  C    R.  385 56 

Mabry,  State  v 64  N.  C.  R.  592 33 

Mabry  v.  Engelhard, 70  N.  C.  R.  377 81 

Mace,  State  v 65  N.  C.  R.  344 208 

Macon,  Shortridge  v Phil.  L.  R.  392 406 

Macon,  Batchelor  v 67  N.  C.  R.  181 485 

Macon,  Batchelor  v 69  N.  C.  R.  545 131 

Mallett,  Emerson  v Phil.  Eq.  R.  234 76 


NAMES  OF  CASES. 


XXXIX 


NAMES  OF  PARTIES.  REPORTER. 

Malpass  v.  Caldwell,  70  N.  C.  R.  130 . . 

Mangum,  Kirkland  v Phil.  L.  R.  177 . . 

Mangum,  Johnson  v 65  N.  C.  R.  146 . . 

Mann  v.  Blount, 65  N.  C.  R.     99. 

Manuel,  State  v 64  N.  C.  R.  601 . 

March  v.  Phelps, Phil.  L.  R.  560 . 

March  v.  Thomas,. 63  N.  0.  R.     87 . 

March  v.  Thomas, 63  N.  C.  R.  249 . , 

March,  Fraley  v.     68  N.  C.  R.  160 . . 

Mardre  v.  Felton, Phil.  L.  R.  279 

Marlow,  Maslin  v 65  N.  C.  R.  695 . 

Marsh  v.  Grist, Phil.  Eq.  R.  349 . 

Marsh  v.  Williams, 63  N.  C.  R.  371 . 

Marsh,  State  v 64  N.  C.  R.  378. 

Marsh  v.  Cohen, 68  N.  C.  R.  283 . 

Marshall,  State  v Phil.  L.  R.     49 . 

Marshall,  Bullinger  v 70  N.  C.  R.  520. 

Martin,  Little  v Phil.  L.  R.  240 . , 

Martin,  State  v Phil.  L.  R.  326 . 

Martin,  Colson  v Phil.  Eq.  R.  125 . , 

Martin  v.  McMillan, 63  N.  C.  R.  486. . 

Martin,  Salms  v 63  N.  C.  R.  608 . , 

Martin  v.  Deep  River  Co., 64  N.  C.  R.  653. 

Martin  v.  Cuthbertson, 64  N.  C.  R.  328. 

Martin  v.  McMillan, 65  N.  C.  R.  199 . 

Martin,  Sprinkle  v 66  N.  C.  R.     55 . 

Martin  v.  Wilbourne, 66  N.  C.  R.  321 . . 

Martin  v.  Hughes, 67  N.  C.  R.  293 . 

Martin  v.  Richardson, 68  N.  C.  R.  255 . . 

Martin,  Childs  v 68  N.  C.  R.  307 . . 

Martin,  Childs  v 69  N.  C.  R.   126 . . 

Martin,  Sprinkle  v 69  N.  C.  R.  175 . . 

Martin,  Deep  River  Co.  v 70  N.  C.  R.  300. . 


Martin  v.  Jarratt 70  N .  C.  R.  459 . 

Martin,  State  v 70  N.  C.  R. 

Martin  v.  Sloan, 69  N.  C.  R. 

Mason  v.  Miles, 63  N.  C.  R. 

Mason  v.  Osgood, 64  N.  C.  R. 

Mason,  State  v 66  N.  C.  R, 


628. 

128. 

564. 

467 

636. 

Mason  v.  Williams, 66  N.  C.  R.  564 . 

Mason,  Stanly  v 69  N.  C.  R.       1 

Massage,  State  v 65  N.  C.  R.  480. 

Massey,  Kivett  v 63  N.  C.  R.  240 

Massingill,  Stanly  v 63  N.  C.  R.  558 

Mastin  v.  Marlow, 65  N.  C.  R.  695. 


PAGE  OP  DIGEST. 
218 
146 

189 

50 

149  257 

487 

446 

65 

373 

184  457 

102  300 
189 

,   37  348  386 

244 

18  417 

166  413 

.  152  293  345 

210 

52 

.  112  196  239 

109 

124 

284 

44 

58 

178 

479 

234 

446 

24 

305 

229 

289 

462 

400 

263  269  403 

284 

191 

215 

144 

373 

237 

81 

10  387 

103  300 


XL  NAMES  OF  CASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Mastin,  Gore  v 66  N.  C.  R.  371 (See  errata.) 

Mastin,  Kirby  v 70  N.  C.  R.  540 160 

Matthews,   Thompson  v Phil.  L.  R.     15 146 

Matthews  v.  McPherson, 65  K  C.  R.  189  477 

Matthews,   State  v 66  N.  C.  R.  106   ,        163 

Matthews  v.  Smith, 67  N.  C.  R.  374 108    397 

Maultsby,  McDowell  v Phil.  Eq.  R.     16 376 

Maultsby,  Wooten  v 69  N.  C.  R.  462 363 

Mauny,  Howes  v 66  N.  C.  R.  218 267    291 

Maxwell  v  McBrayer, Phil.  L.  R.  527 37 

Maxwell  v  Hipp, 64  N.  C.  R.    98 440 

Maxwell,  Peoples  v 64  N.  C.  R.  313 148 

Maxwell,  Skinner  v 66  N.  O.  R.    15 260     303 

Maxwell  v.  Houston, 67  N.  C.  R.  305 44 

Maxwell  v.  Maxwell, 67  N.  C.  R.  383  387     392    420 

Maxwell,   Skinner  v 67  N.  C.  R.  257 65 

Maxwell,    Skinner  v 68  N.  C.  R.  400 414 

Maxwell  v.  Maxwell, 70  N.  O.  R.  267 422 

May  v.  Hanks, Phil.  Eq.  R.  310 302     346 

Mayars,  Pearsall  v 64  N.  C.  R.  549 21  28  337  370  485 

Mayfield  v.  Jones, 70  N.  C.  R.  536  375 

Mayhew  v.  Davidson, Phil.  Eq.  R.    47 320 

Mayho  v.  Cotton, 69  K  C.  R.  289 235 

Maynard  v.  Moore, 70  N.  C.  R  546 137 

McAdams,   Crawford  v 63  N.  C.  R.    67 376 

McAden  v.  Bannister, 63  N.  C.  R.  478 275 

McAden  v.  Jenkins, 64  N.  C.  R.  796  384 

McAdoo  v.  Benbow, 63  N.  C.  R  461 86 

McAdoo,  Pinnix  v 68  N.  C.  R.    56 8 

McAfee,  State  v 64  N.  C.  R  339 306 

McArthur  v.  Johnson, Phil.  L.  R.  317 124 

McArthur  v.  McEachin 64  N.  C.  R.     72 265    404 

McArthur  v.  McEachin, 64  N.  C.  R  454 427 

McArthur,  Johnson  v 64  N.  C.  R.  675 71 

McBee,  Ex  parte, 63  N.  C.  R.  332 121     128 

McBrayer,  Maxwell  v Phil.  L.  R.  527 37 

McBride,  Younce  v 68  N.  C.  R  532 226 

McBride,  Sears  v  70  N.  C.  R  152 127 

McCadden,  Critcher  v 64  N.  C.  R.  262 416 

McCall,  Horton  v 66  N.  C.  R.  159 233 

McCandless  v.  Reynolds, 67  N.  C.  R.  268 158 

McCarthy,  Kane  v 63  N.  C.  R  299 342 

McCauly,  Guess  v Phil.  L.  R.  514 136 

McClair,  Jones  v 64  N.  C.  R.  225 404 

McClarty  v.  Broom,  67  N.  C.  R  311 203 


NAMES  OF  CASES.  XLI 

NAMES  OP  PARTIES.  REPORTER.                      PAGE  OF  DIGEST. 

McClees,  Ransom  v 64  N.  C.  R.    17 109  366  370  374 

McClure,  Stato  v Phil.  L.  R.  491   256 

McCombs,  Harshaw  v. 63  N.  C.  R.    75 214 

McCombs,  Sudderth  v 65  N.  C.  R.  186 223 

McCombs,  Hagler  v 66  N.  C.  R.  345 202  204  205  360 

McCombs  v.  Wallace, 66  N.  C.  R.  481 308 

McCombs  v.  N.  C.  R.  R.  Co., . .   67  N.  C.  R.  193 44     155     396 

McCombs  v.  Griffith, 67  N.  C.  R.    83 442 

McCombs  v.  Sudderth, 67  N.  C.  R.  358 . 13      22 

McCombs  v.  N.  C.  R.  R.  Co.,...   70  N.  C.  R.  178. 8 

McConnaughey  v.  Chambers,. . .   64  N.  C.  R.  284 445 

McConnell  v.  McConnell, 64  N.  C.  R.  342 72 

McCorkle  v.  Earnhardt, Phil.  L.  R.  300 484 

McCormick,  Wright  v 67  N.  C.  R.    27 351    358 

McCormick,  Wright  v 69  N.  C.  R.     14 351 

McCown  v.  Sims, 09  N.  C.  R.  159 338 

McCoy  v.  Wood, 70  N.  C.  R.  125 326 

McCubbins  v.  Barringer, Phil.  R.  L.  554 298 

McCullock,  Falls  v Phil.  Eq.  R.  140 320 

McCullock  v.  Doak 68  N.  C.  R.  267 155    289    343 

McCurry,  State  v 63  N.  C.  R.     33 168    306 

McDaniel,  Andrews  v 68  N.  C.  R.  385 150    361 

McDonald  v.  Haughton, 70  N.  C.  R.  393 110 

McDonnell,  Addington  v 63  N.  C.  R.  389 100 

McDowell  v.  Maultsby Phil.  Eq.  R.    16 376 

McDowell  v.  Asbury, 66  N.  C.  R.  444 199 

McDowell  v.  White, 68  N.  C.  R.     65 132 

McDowell  v.  Clark 68  N.  C.  R.  118 188    450 

McEachin,  McArthur  v 64  N.  C.  R.     72 265    404 

McEachin,  McArthur  v 64  N.  C.  R.  454 427 

McEntire  v.  West.  N.C.R.R.Co.,  67  N.  C.  R.  278 412 

McFagden  v.  Harrington,   67  N.  C  R.     29 354 

McGalliard,  State  v Phil.  Eq.  R.  346 359 

McGehee,  Carter  v Phil.  L.  R.  431 75     220 

McGowan,  People  v 68  N.  C.  R.  520 91 

Mcllhenny,  Bunting  v Phil.  L.  R.  579 20 

Mcllwaine,  Smith  v 63  N.  C.  R.    95 385 

Mcllwaine,  Smith  v 70  N.  C.  R.  287 399 

Mclntyre  v.  Guthrie, 64  N.  C.  R.  104 335 

Mclntyre  v.  Merritt, 65  N.  C.  R.  558 68 

Mclntyre  v.  W.  N.  C.  R.  R.  Co.,  64  N.  C.  R.  278 412 

Mcintosh,  State  v 64  N.  C.  R.  607 52 

Mclver.  Robinson  v 63  N.  C.  R.  645 317    320    324 

Mclver,  People  v 68  N.  C.  R.  467 349 

McKay  v.  Ray, 63  N.  C.  R.    46 270 

0 


XL1I  NAMES  OF  CASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

McKay  v.  Smitherman, 64  N.  C.  R.    47 77 

McKay,  Summers  v 64  N.  C.  R.  555 441 

McKay  v.  Gilliam, 65  N.  C.  R.  130 478 

McKee,  Adderholt  v 65  N.  C.  R.  257  117 

McKee,  People  v 68  N.  C.  R.  429 348 

McKee  v.  Lineberger, 69  N.  C.  R.  217 155     449 

McKeithan  v.  Terry, 64  N.  C.  R.    25 232 

McKeithan  v.  Walker, 66  N.  C.  R.    95 185 

McKenzie,  Reynolds  v Phil.  Eq.  R.    50 261     301 

McKenzie  v.  Culbreth, 66  N.  0.  R.  534 2 

McKenzie,   Kluttsv 65  N.  C.  R.  102 386    419 

McKenzie,  Rogers  v 65  N.  C.  R.  218 

McKinnon  v.  Faulk, 68  N.  C.  R.  279 

McKesson  v.  Mendenhall, 64  N.  C.  R.  286 

McKesson  v.  Mendenhall, 64  N.  C.  R.  502 

McKesson,  Walton  v 64  N.  C.  R.    77 

McKesson,  Walton  v 64  N.  C.  R.  154 70    444 

McKesson,  Harshaw  v 65  N.  C.  R.  688 6     102 

McKesson,  Harshaw  v 66  N.  C.  R.  266 

McKesson  v  Hennesee, 66  N.  C.  R.  473 


186 
14 
370 
383 
280 


McKesson  v  Jcnes, 66  N.  C.  R.  258 54 

McLarty  v.  Broom, 67  N.  C.  R.  311 

McLaurin,  Dick  v 63  N.  C.  R.  185 

McLaurine,  Ex  parte, 63  N.  C.  R.  528 

McLean,   Young  v 63  N.  C.  R.  576 


339 

267 

79  154  308 

203     224 

283 

455 

60 

McLean,  Harrington  v Phil.  Eq.  R.  258 188  301  366  376 

McLean  v.  Leach, 68  N.  C.  R.    95 200     371 

McLenan  v.  Chisholm, 64  N.  C.  R.  323 20 

McLenan  v.  Chisholm, 64  N.  C.  R.  328 219 

McLenan  v.  Chisholm 66  N.  C.  R.  100 129    395 

McLenan  v.  McLeod, 70  N.  C.  R.  364 2     137 

McLin  v.  Newborn, 70  N.  C.  R.    12 

McMahon,  Blankenship  v 63  N.  C.  R.  180 

McMichael,   Caffey  v 64  N.  C.  R.  507 

McMillan,  Martin  v 63  N.  C.  R.  486 

McMillan  v.  Daves, 66  N.  C.  R.  539 

McMillan,  State  v 68  N.  C.  R.  440 11     313 

McMillan  v.  McNeill, 69  N.  C.  R.  129 381 

McMillan,  Martin  v 65  N.  C.  R.  199 58 

McMinn  v.  Allen, 67  N.  C.  R.  131 47 

McMinn  v.  Freeman, 68  N.  C.  R.  341 57 

McNair,  Thompson  v Phil.  Eq.  R.  121 262 

McNair,  Thompson  v 64  N.  C.  R.  418 865 

McNair,  McRae  v 69  N.  C.  R.    12 443 

McNairy,  Gilmer  v 69  N.  C.  R.  335 159 


471 

37 

221 

109 

107 


NAMES  OF  OASES.  XLIII 

NAMES  OF  PARTIES.  REPORTER.                      PAGE  OP  DIGEST. 

McNatt,  Lewis  v 65  N.  C.  R.    63 307     367 

McNeill  v.  Morrison, 65  N.  C.  R.  508 438 

McNeill,  Griffis  v Phil.  L.  R.  175 382 

McNeill  v.  Shaw, Phil.  Eq.  R.    91 437 

McNeill  v.  Riddle, 66  N.  C.  R.  290 137     379    479 

McNeill  v.  McMillan, 69  N.  C.  R.  129 381 

McNinch  v.  Ramsay, 66  N.  C.  R.  229 61 

McPherson,  Matthews  v 65  N.  C.  R.  189 477 

McPherson,  State  v 70  N.  C.  R.  239 64 

McQuaig,    State  t 63  N.  C.  R.  550 52 

McRae,  Hornthall  v 63  N.  C.  R.    21 46 

McRae  v.  Battle, 69  N.  C.  R.    98 241     358     369 

McRae  v.  McNair, 69  N.  C.  R.    12 443 

Mebane  v.  Cummings, 63  N.  C.  R.  315 76 

Mebane,  Whitsell  v 64  N.  C.  R.  345 121 

Mebane  v  Mebane, 66  N.  C.  R.  334 360 

Mebane,  Cardwell  v 68  N.  C.  R.  485 155 

Melton  v.  Monday, 64  N.  C.  R.  295 219 

Melvin,  Guion  v 69  N.  C.  R.  242 405    481 

Mendenhall,  McKesson  v 64  N.  C.  R.  286 370 

Mendenhall,  McKesson  v 64  N.  C.  R.  502 383 

Mercer,  State  v 67  N.  C.  R.  266  (See  errata.) 

Merchant's   Bank   of  Newbern, 

Perry  v 69  N.  C.  R.  551 35 

Merchant's    Bank   of   Newbern, 

Perry  v 70  N.  C.  R.  309 51 

Meroney  v.  Avery, 64  N.  C.  R.  312 388 

Meroney,  Haughton  v. 65  N.  C.  R.  124   58 

Merrill  v.  Barnard, Phil.  L.  R.  569 12 

Merrimon  v.  Norton, 67  N.  C.  R  115 375 

Merritt,  State  v Phil.  L.  R.  134  32 

Merritt,  Murphy  v 63  N.  C.  R.  502 284 

Merritt,  Mclntyre  v 65  N.  C.  R.  558 68 

Merritt,  Hughes  v 67  N.  C.  R.  386 492 

Merwin  v.  Ballard, 65  N.  C.  R.  168 103     367 

Merwin  v.  Ballard, 66  N.  C.  R.  398 275     388 

Messick,  Sparks  v 65  N.  C.  R,  440 487 

Miles,  Maran  v. . . .    •  •  • 63  N.  C.  R.  564 284 

Miller,    Lackey  v Phil.  L.  R.    26 48 

Miller  v  Miller, Phil.  Eq.  R.    85 85 

Miller,  Moore  v .'.....   Phil.  Eq.  R.  359 187     196 

Miller,  Taylor  v Phil.  Eq.  R.  365 .   459 

Miller  v.  Atkinson 63  N.  C.  R.  537 132 

Miller,  Britten  v 63  N.  C.  R.  268 316 

Miller  v.  Gibson, 63  N.  C.  R.  635 (see  errata.) 


XLIV  NAMES  OF  OASES. 

NAMFS  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Miller,  Sumner  v 64  N.  C.  B.  588 296    336    457 

Miller  v.  Barnes 65  N.  C.  R.     67 299 

Miller  v.  Land  &  Lumber  Co.,. .  66  N.  C.  R.  503 7    145 

Miller,  Howey  v. 67  N.  C.  R.  459 184 

Mills,  Carson  v 69  N.  C.  R.     32 152 

Mills,  Carson  v 69  N.  C.  R.  122 454 

Mimsv.  Crump, 64  N.  C.  R.  767 71    427 

Minguis,  Bost  v 64  N.  C.  R.     44 473 

Minor  v.  Harris, Phil.  L.  R.  322 335 

Minton,  State  v Phil.  L.  R.  196 247 

Mitchell,  Moore  v Phil.  L.  R.  304 283 

Mitchell,  State  v Phil.  L.  R.  447 162 

Mitchell,  Clements v Phil.'^Eq.R.      3 161    352 

Mitchell  v.  Moore, Phil.  Eq.  R.  281 400 

Mitchell  v.  Henderson, 63  N.  C.  R.  643 36    278 

Mitchell,  Smith  v 63  N.  C.  R.  620 19 

Mitchell  v.  Mitchell, 67  N.  C.  R.  307 27 

Mitchell,  Eubanks  v 67  N.  C.  R.    34 391 

Mitchell  v.   Sloan, 69  N.  C.  R.     10 25 

Mitchell,  Albright  v 70  N.  C.  R.  445 390 

Mitchell  v.  Wood 70  N.  C.  R.  297 60 

Mitchener  v.  Atkinson Phil.  Eq.  R.    23 319     488 

Mitchener  v.  Atkinson, 63  N.  C.  R.  585 320 

Mixer  v.  Excelsior  G.  &  O.  Co.,  65  N.  C.  R.  552 45 

Mode  v.  Long, 64  N.  C.  R.  433 378 

Monday,  Melton  v 64  N.  C.  R.  295   219 

Monroe,  Colvord  v 63  N.  C.  R.  288 243 

Monroe,  Williams  v 67  N.  C.  R.  133 58    443 

Monroe,  Williams  v 67  N.  C.  R.  164 479 

Moody,  Walker  v 65  N.  C.  R.  599 438    448 

Moody,  Love  v 68  N.  C.  R  200 344 

Moody,  State  v 69  N.  C.  R.  529 415 

Mooney,  Atkin  v Phil.  L.  R.     31 54    181 

Mooney ,  State  v Phil.  L.  R.  434 32 

Mooney,  State  v 64  N.  C.  R.     54 170 

Moore  v.  Mitchell, Phil.  L.  R.  304 2S3 

Moore  v.  Miller, Phil.  Eq.  R.  359 187     196 

Moore,  Mitchell  v Phil.  Eq.  R.  281 400 

Moore,  Williams  v Phil.  Eq.  R.  211   353 

Moore,  Ex  parte 63  N.  C.  R.  397 92 

Moore,  Smith  v 63  N.  C.  R.  138 350 

Moore,  in  re 64  N.  C.  R.  398 92 

Moore,  Ex  parte, 64  N.  C.  R.     90 490 

Moore  v.  Boudinot, 64  N.  C.  R.  190. . . . . .  68 

Moore,  Dodson  v 64  N.  C.  R.  512 107 


NAMES  OF  CASES.  XLV 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Moore,  Furman  v 64  N.  C.  E.  358 197 

Moore,  Hilliard  v 65  N.  C.  E.  510 (see  errata.) 

Moore  v.  Byers, 65  N.  C.  E.  240 198    276 

Moore,  EiJJick  v 65  N.  0.  E.  382 187    446 

Moore,  Green  v 66  N.  C  E.  425. . . .   :  381     439 

Moore  v.  N.  C.  E.  E.  Co., 67  N.  C.  E.  209 (see  errata  ) 

Moore,  Islerv  67  N.  C.  E.     74 448 

Moore  v-  Shields 68  N.  C.  E.  327 201 

Moore  v.  Ballard '  69  N.  C.  E.     21 116 

Moore  v.  Shields 69  N.  C.  E.     50 227 

Moore,  State  v G9  N.  C.  E.  267 237 

Moore  v.  Thompson, 69  N.  C.  B.  120 379 

Moore  v.  Com'rs  of  Alamance, . .  70  N.  C.  E.  340 114 

Moore  v.  Edmiston, 70  N.  C.  E.  471 345 

Moore  v.  Edmiston, 70  N.  C  E.  510 359 

Moore,  Maynard  v 70  N.  C.  E.  546 137 

Moore,  N.  C.  E.  E.  Co.  v 70  N.  C.  E.       6 412 

Moorman,  Leak  v Phil.  L.  E.  168 36 

Mordecai,  State  v 68  N.  C.  E.  207 63    259 

Morehead,  Cracoff  v 67  N.  C.  B.  422 241     268 

Morehead,  State  v 65  N.  C  E.  681 39 

Morehead,  Foy  v 69  N.  C.  E.  512 373 

Morgan,   Davis  v 64  N.  C.  B.  570 54 

Morgan  v.  Hubbard, 66  N.  C.  B.  394 1C1 

Morris  v.  Avery, Phil.  L.  E.  238 1 

Morris,  Perry  v 65  N.  C.  E.  221 277 

Morris  v.  Whitehead,  65  N.  C.  E.  637 94    291 

Morris,  Bryant  v 69  N.  C.  B.  444 150 

Morrisey,  Croom  v 63  N.  C.  E.  591 404 

Morrison,  Kidd  v Phil.  Eq.  E.    31 112 

Morrison  v  Cornelius, 63  N.  C.  E.  346 3       19 

Morrison,   McNeill  v 63  N.  C  E.  508 4°8 

Morrison  v.  White, 67  N.  C.  E.  253 140     24!     423 

Morrison,    Lawrence  v 68  N.  C.  E.  162   225 

Morrow  v.  Alman, 65  N.  C.  E.  508 388 

Mott  v.  Tate, 66  N.  C.  E.  214 333 

Moye  v.Pope, G4  N.  C.  E.  543 441 

Moye  v.  Cogdell,    66  N.  C  E.  403 390 

Moye  v.  Cogdell, 69  N.  C.  E.    93   42 

Murphy  v.  Merritt, 63  N.  C  E.  502 £84 

Murphy,    Cronly  v 64  N.  C.  E.  489 175 

Murphy  v.  Harrison, 65  N.  C.  R.  246 202    Lfi9 

.Murphy,  Larking  v  68  N.  C.  E.  381 420 

Murphy,  Eerring  v 70  N.  C.  R.  104 422 


XL VI  NAMES  OF  GASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Murphy  v.  Wilmington  &  W.  R. 

R.  Co, 70  N.  C.  R.  437 4 

Murray,  Boyd  v Phil.  Eq.  R.  338 177 

Murray,  Newlin  v 63  1ST.  C.  R.  566 179 

Murray,  State  v 63  N.  C.  R.    31 167 

Murray,  Harden  v 68  N.  C.  R.  534  398 

Musgrove,    Eagin  v Phil.  L.  R.     13 384 

Myerfield,  State  v Phil.  L.  R.  108 31 

Myers  v  Credle, 63  N.  C.  R.  504 426 

Myers  v  Hamilton, 65  N.  C.  R.  567 291 

Nash,  Whitted  v 66  N.  C.  R.  590 199    389 

Nash  v.  Wilmington  &  W.  R.  R. 

Co., 67  N.  C.  R.  413 63 

Nash,  Hadley  v 69  N.  C.  R.  162 278    486 

Naylor,  Frost  v 63  N.  C.  R.  325 234 

Neal  v.  Lee, 64  N.  C.  R.  678 370    445 

Neal  v.  Cowles,    70  N.  C.  R.  124 81 

Neeley  v.  Craige, Phil.  L.  R.  187 281 

Neighbors,  Hoover  v  '. 61  N.  C.  R.  429 28 

Neighbors  v.  Jordan, 70  N.  C.  R.  406 204 

Nelson  v.  Blue, 63  N.  C.  R.  659  317    377 

Neuse  River  F.  Co.,  Barrington  v  69  N.  C.  R.  165 207 

Neville,    Johnson  v   65  N.  C.  R.  677 138     139     3G5 

Neville,    Johnson  v   68  N.  C.  R.  177 14     362 

Newberne,  Keeler  v Phil.   L.  R.  505  174     348 

Newberne  v.  Jones, 63  N.  C.  R.  606 41 

Newberne,  McLiu  v, 70  N.  C.  R.    12 471 

Newberne,  Smith  v   70  N.  C.  R.    14 471 

Newberry,   Haughtou  v 69  N.  C.  R.  453 06 

Newby,  State  v 64  N.  C.  R.     23 258 

Newlin  v.  Murray,     63  N.  C.  R.  566 179 

New  York  W.  S.  Co.,  Clegg  v. .   66  N.  C.  R.  391 287 

New  York  W.  S.  Co.,  Clegg  v. .   67  N.  C.  R.  302 288 

Nichols,    Dunn  v 63  N.  C.  R.  107 ISO 

Nicholson,  Parsley  v 65  N.  C.  R.  207 364 

Nixon,  Bledsoe  v  68  N.  C.  R.  521 118     461 

Nixon,  Bledsoe  v  69  N.  C  R.    81 24    344 

Nixon,  Bledsoe  v   69  N.  C.  R.     89 273 

Nixon,  Hoar  v         69  N.  C  R.  108   235 

Nobles  v.  Langly, 66  N.  C.  R.  287 427 

Norfleet  v.  Cromwell, 64  N.  C.  R.      1 135 

Norfleet  v   Cromwell, 70  N.  C.  R.  634   118 

North  Carolina  L.  Co.  v.  Beatty,   69  N.  C.  R.  329 363 

North  Carolina  It.  R.  Co.,  Ben- 
bow  v Phil.  L.  R.  421 73 


NAMES  OF  CASES. 


XLY1L 


NAMES  OF  PARTIES.  REPORTER. 

North   Carolina  M.    L.   In.  Co., 

Conigland  v Phil.  Eq.  R.  341 . . 

North   Carolina  R.  R.  Co.,  Pee- 
bles v 63  N.  C.  R.  238  . 

North  Carolina  R.  R.  Co.,  Tur- 
ner v 63  N.  C.  R.  522.. 

North  Carolina  R.  R.  Co.,  Pat- 
terson v 64  N.  C.  R.  147. . 

North  Carolina  R.  R.  Co.,  Smith 

v 64  N.  C.  R.  235.. 

North  Carolina  R.  R.  Co.,  Coon 

v 65  N.  C.  R.  507.. 

North  Carolina  R.  R.  Co.,  Lam- 
beth v  66  N.  C.  R.  494. . 

North  Carolina  R    R.  Co.,  Bur- 
roughs v 67  N.  C.  R.  396. . 

North  Carolina  R.  R.  Co.,  Jones 

v 67  N.  C.  R.  122.. 

North  Carolina  R.   R.  Co.,  Mc- 

Combs  v 67  N.  C.  R.  193.. 

North  Carolina  R.  R.  Co.,  Smith 

v 68  N.  C.  R.  107.. 

North    Carolina    R.    R.    Co.,    v 

Moore, 70  N.  C.  R.      6 . . 

North  Carolina  R.  R.  Co.,  Dowd 

v 70  N.  C.  R.  468  . 

North  Carolina  R.  R.  Co.,  Jones 

v 70  N.  C.  R.  626 . . 

North  Carolina  R.  R.  Co.,  Mc- 

Combs  v 70  N.  C.  R.  178. , 

North  Carolina  O.  D.  Co.,  Jink- 
ins  v C5  N.  C.  R.  563 . 

North  Western  N.  C.  R  R.  Co., 

v.  Jenkins, 65  N.  C.  R.  173 . 

Norris,  Thomas  v 64  N.  C.  R.  780 

Norton  v.  Edwards, 6G  N.  C.  P.  367. 

Norton  v.  Merrimon, 67  N.  C.  R.  115. 

Norwood  v.  Thorp, 64  N.  C.  R.  682 

Norwood  v.  Harris, 69  N.  C.  R.  204 

Nowoll,  Turley  v Phil.  Eq.  R.  301 . . 

Nntt,  State  v Phil.  L.  R.    20 

Nutt  v.  Thompson, 69  N.  C.  R.  548 

Oates,  Carson  v 64  N.  C.  R.  115 

Oates  v.  Gray, 66  N.  C.  R.  442. 

Oates  v.  Kendall, 67  N.  C.  R.  241 . 


PAGE  OP  DIGEST. 

Ill 
2 

406 

408 

72 

411 

73 

412 

174 

.   44  155  396 

153  157 

412 

81 

5 

8 

367  3S9 

331 

330 

193 

375 

71 

14 

76   98 

253  457 

421 

196 

281  363 

157  363 


XLVIII  NAMES  OF  OASES. 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Ogburn  v.  Teague, 67  N.  C.  R.  355 390  443 

Oldham,  Roberts  v 63  N.  C.  R.  297 178  353 

O'Hagan,  Bland  v 64  N.  C.  R.  471 20 

Oliveira  v.  The  University, Phil.  Eq.  R.    69 301     359 

Oliver  v.  Perry, Phil.  L.  R.  581 1 

Oliver,  State  v 70  N.  C.  R.     60 34 

Osborne,  Johnston  v Phil.  Eq.  R.    59 319 

Osborne  v.  Johnston, 65  N.  C.  R.     22 62    378 

Osborne  v.  Henry, 66  N.  C.  R.  354 (see  errata.) 

Osborne,  Ledbetter  v 66  N.  C.  R.  379 287    417 

Osborne,  Dobbins  v 67  N.  C.  R.  259 149    224 

Osgood,  Mason  v 64  N.  C.  R.  467  .   ...  191 

Outlaw,  Herring  v 70  N.  C.  R.  334 298 

Overman  v.  Grier, 70  N.  C.  R.  693 201 

Owen,  State  v Phil.  L.  R.  425 305 

Owen,  Sutton  v 65  N.  C.  R.  123 220 

Pace,  Dixon  v 63  N.  C.  R.  603 9 

Pace  v.  Robertson, 65  N.  C.  R.  550 54 

Paine  v.  Caldwell, 65  N.  C.  R.  488 472 

Painter,  State  v 70  K  C.  R.     70 25l 

Palin  v.  Small 63  N.  C.   3.  484 354 

Palin,  State  v 63  N.  C.  R.  471 52 

Palmer  v.  Anderson, 63  N.  C.  R.  365 (see  errata.) 

Palmer,  Deal  v 68  N.  C.  R.  215 288    346 

Parham  v.  Green 64  N.  C.  R.  436 460 

Parker  v.  Shannonhouse, Phil.  L.  R.  209 83 

Parker  v.  Stallings, Phil.  L.  R.  590 53 

Parker,  State  v Phil.  L.  R.  473 255 

Parker,  Weaver  v Phil.  L.  R.  479 19    1(30 

Parker  v.  Grammer, Phil.  Eq.  R.    28 261 

Parker,  Buie  v 63  N.  O.  R.  131 141 

Parker  v.  Flora 63  N.  C.  R.  474 57 

Parker,  Wood  t 63  N.  C.  R.  379 438 

Parker  v.  Carson, 64  N.  C.  R.  563 442 

Parker  v.  Scott 64  N.  C.  R.  118 475 

Parker  v.  Smith, 64  N.  C.  R.  291   (see  errata. ) 

Parker  v.  House, 66  N.  C.  R.  374 281 

Parker,  State  v 66  N.  C.  R.  624 394 

Parker,  Davis  v 69  N.  C.  R.  271  131 

Parker,  State  v 65  N.  C.  R.  453 248 

Parks,  Caldwell  v Phil.  L.  R.     54 383 

Parks  v.  Sprinkle, 64  N.  C.  R.  637 182 

Parrish,  Grissom  v Phil.  Eq.  R.  330 315 

Parrishv.  Wilhelm, 63  N.  C.  R.     50 375    473 

Parsley  v.  Nicholson, 65  N.  C.  R.  207 364 


NAMES  OF  CASES.  XLIX 

NAMES  OF  PARTIES.  REPORTER.                      PAGE  OF  DIGEST. 

Patrick  v.  Joyner, 63  &.  C.  E.  573 264 

Patrick,  Blakely  v 67  N.  0.  E.     40 66    341 

Patterskall,  Vouchee  v 67  N.  C.  E.  453 23    392 

Patterson  v.  Patterson, 63  N.  C.  E.  322 128 

Patterson,  State  v 63  S.  C.  E.  520 169 

Patterson  v.  N.  C.  E.  E.  Co.,. . .  64  N.  C.  E.  147 408 

Patterson  v.  Hubbs, 65  N.  C.  E.  117 346 

Patterson,' State  v 68  N.  C.  E.  292 165    251 

Patterson,  Donono  v 70  N.  C.  E,  649 195 

Patton  v.  Hunt, 64  N.  C.  E.  163 20    119    468 

Patton,  Luskv 70  N.  C.  E.  701 .     357 

Paul  v.  Carpenter, 70  N.  C.  E    502 243 

Pearce,  Perry  v 08  N.  C.  E.  367 289 

Pearce,  Lee  v  68  N.  C.  E.     76 218    300 

Pearce,  Lee  v 68  N.  C.  B.     90  211 

Pearce,  Creecy  v 69  N.  C.  B.     67 

Pearce,  Lovinier  v 70  N.  C.  E.  167   195 

Pearman,  State  v Phil.  L.  B.  371  208 

Pearsall  v.  Mayers, 64  N.  C.  E.  549 . .  .21,  28,  337,  370,  485 

Pearson  v.  Caldwell, 70  N.  C.  E.  291 228     381 

Peebles  v.  N.  C.  E.  E.  Co., ....   63  N.  C.  E.  238 2 

Peebles  v.  Peebles, 63  N.  C.  E.  656 380 

Peebles  v.  Horfcon, 64  N.  C.  B.  374 215 

Peebles,  State  v 67  N.  C.  E.     97 361    419 

Peebles,  Cox  v 70  N.  C.  E.     10 228 

Pegram  v.  Com'rs  of  Cleaveland,  64  N.  C.  B.  557 88    330 

Pegram  v.  Com'rs  of  Cleaveland,  65  N.  C.  B.  114 330 

Pegram  v.Stoltz, 67  N.  C.  E.  144 150    390    454 

Pelletier  v.  Saunders,  67  N.  C.  E.  261 194 

Pender,  State  v 66  N.  C.  B.  646  89 

Peudleton  v.  Dalton, Phil.  Eq.  E.  119 97 

Pendleton  v.  Dalton, 64  N.  C.  E.  329 265 

Pendletun,    State  v 65  N.  C.  E.  617 295 

Penland,   State  v Phil.  L.  E.  222 247 

Penny  v.  Smith, Phil.  L.  E.    35 12 

People  v.  McKee, 68  N.  C.  E.  429 348 

People  v.  Bledsoe, 68  N.  C.  B.  459 90    349 

People  v.  Mclver, 68  N.  C.  E.  467 349 

People  v.  Johnston, 68  N.  C.  E.  471 348     349 

People  v.  McGowan, 68  N.  C.  E.  520 91 

Peoples  v.  Maxwell, 64  N.  C.  R.  813. 148 

Pepper,   State  v 68  N.  C.  E.  259 250 

Perkins,  Kincade  v 63  N.  C.  E.  282 326 

Perkins,  State  v 66  N.  C.  It.  126 151     306 

Perry,  Oliver  v  ....•••  • Phil.  L.  B.  581  1 

7 


L  NAMES  OF  CASES. 

NAMES  OF  PARTIES'.  REPORTER.  PAGE  OP  DIGEST. 

Perry,  Youngv Phil.  L.  R.  549 136 

Perry,  Campbell  v 63  N.  C.  R.  257 . 464 

Perry,  Rowland  v 64  N.  C.  R.  578 404 

Perry,  State  v 64  N.  C.  R.  305 206 

Perry,  State  v 64  N.  C.  R.  598 294 

Perry,  Teague  v 64  N.  C.  R.    39 219 

Perry  v.  Morris, 65  N.  C.  R.  221 277 

Perry  v.  Hill, 68  N.  C.  R.  417 157 

Perry  v.  Pearce, 68  N.  C.  R.  367 289 

Perry  v.  Merchants  Bank  of  N.  C.  69  N.  C.  R.  551 35 

Perry  v.  Merchants  Bank  of  N.  C.  70  N.  C.  R.  309 51 

Perry,  Person  v 70  N.  C.  R.  697 463 

Perry  v.  Tupper, 70  JST.  C.  R.  53S 210 

Person,  Hughes v 63  N.  C.  R.  548 .  >.  . . . .  30 

Person,  Long  v 63  N.  C.  R.  550 30 

Person,  Stephenson  v 63  N.  C.  R.  550 30 

Person  v.  Perry, 70  N.  C.  R.  697 463 

Peterson,  Wilson  v 69  N.  C.  R.  113 447 

Petteway  v.  Dawson, 64  N.  C.  R.  450 42 

Pettis  v.  Smith, 69  N.  C.  R.      3 131 

Phelan  v.  Hutchison,    Phil.  Eq.  R.  116 272     352 

Phelps,  March  v Phil.  L.  R.  560 4S7 

Phelps,  State  v 65  N.  C.  R.  450 248 

Phifer,  State  v 65  N.  C.  R.  321 206 

Phillips  v.  Hooker, Phil.  Eq.  R.  193 76     109 

Phillips,  Devriesv 63  N.  C.  R.    53 214 

Phillips,  Devriesv 63  N.  C.  R.  207 ,     153 

Phillips,  State  v 66  N.  C.  R.  646 21 

Phillips  v.  Trezevant, 67  N.  C.  R.  370 354 

Phillips,  Blackmer  v 67  N.  C.  R.  340 55 

Phillips,  Salem  P.  Academy  v. .  68  N.  C.  R.  491   225 

Phillips  v.  Davis, 69  N.  C.  R.  117 59  124  178  194 

Phillips,  Lassiter  v 70  N.  C.  R.  462 151 

Phillips  v.  Trezevant, 70  N.  C.  R.  176 114 

Phillips,  Witherington  v 70  N.  C.  R.  444   357 

Philpot,  Duncan  v 64  N.  C.  R.  479 452 

Pinnix  v.  Charlotte  &  S.  R.  R. 

Co., 66  N.  C.  R.    34 73 

Pinnix  v.  McAdoo, 68  N.  C.  R.  ^56 8 

Pipkin,  Hughes  v Phil.  L.  R.      4 185 

Pipkin,  Surles  v.   69  N.  C.  R.  513 8 

Pitts,  Gibson  v 69  N.  C-  R.  155 194 

Pleasants,  Harralson  v Phil.  L.  R.  365 27 

Pless,  Roseman  v 65  K  C.  R.  374 198 

Plott  v.  Western  N.  C.  R.  R.  Co.  65  N.  C.  R.    74  3L7    411 


NAMES  OF  OASES.  LI 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Plummer,  Allen  v 63  N.  C.  R.  307 179 

Plummer,  Logan  v 70  N.  C.  R.  388  58 

Poe  v.  Hardie, 65  N.  C.  R.  447 232 

Poindexter  v.  Davis, 67  N.  C.  R.  112 58 

Pollock,  Askew  v 66  N.  C.  R.    49 14    115 

Pollock  v.  Wilcox, 68  N.  C.  R.    46 157 

Pond  v.  Home, 65  N.  C.  R.    84 4S2 

Pool,  Long  v 68  N.  C.  R.  479 9    378 

Pope,  Move  v 64  N.  C.  R.  543 441 

Pope  v.  Whitehead, 68  N.  C.  R.  191 130    467 

Pope,  Dancy  v 68  N.  C.  R.  147 200 

Pope,  Tull  v 69  N.  C.  R.  183 344 

Porter  v.  Jones, 68  N.  C.  R.  320 115 

Porter,  Fell  v 69  N.  C.  R.  140 293 

Potter,  State  v Phil.  L.  R.  338 254 

Potts,  Houston  v 64  N.  C.  R.    33 482 

Potts,  Houston  v 65  N.  C.  R.    41 374 

Powe,  Tatev 64  N.  C.  R.  644 296     331 

Powell  v.  Howell, 63  N.  C.  R.  283 302 

Powell  v.  Hill, 64  N.  C.  R.  169 467 

Powell  v.  Lash, 64  N.  C.  R.  456 336 

Powell  v.  Smith, 66  N.  C.  R.  401 55 

Powell  v.  Weith, 66  N.  C.  R.  423 287 

Powell  v.  Jones,  67  N.  C.  R.  126 485 

Powell  v.  Weith, 68  N.  C.  R.  342 .     289 

Powell  v.  Wilmington  <fe  Weldon 

R.  R.  Co 68  N.  C.  R.  395 397 

Powell,  State  v 70  N.  C.  R.     67 252 

Prince,  State  v 63  N.  C.  R.  529 2<jg 

Price  v.  Gaskins, Phil.  Eq.  R.  224 326 

Price,  Thigpen  v Phil.  Eq.  R.  146 459    474 

Pritchett,  Andrews  v  66  N.  C.  R.  387 389 

Privett,  Brogden  v 67  N.  C.  R.     45 41 

Pugh  v.  Ral.  &  Gas.  R.  R.  Co.,.  Phil.  L.  R.  357 457 

Puitt,  Tuttle  v 68  N.  C.  R.  543 130    318 

Pullen  v.  Com'rs  of  Wake 66  N.  C.   S.  361 464 

Pullen  v.  Hutchins, 67  N.  C.  R.  428 324 

Pullen  v.  Com'rs  of  Raleigh, ...   68  N.  C.  R.  451 470 

Pulley,  State  v  63  N.  C.  R.       8 31     168 

Purdie,  State  v 67  N.  C.  R.     25 250 

Purdie,  State  v 67  N.  C.  R.  326 155    250 

Purser  v.  Simpson 65  N.  C.  R.  497 223 

Purvis  v.  Jackson, 69  N.  C.  R.  474 70    279    364 

Putney,  State  v Phil.  L.  R.  543 309 

Queen,  State  v. . , GO  N.  C.  R.  015 415 


LII  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Bagland  v.  Currin, 64  N.  C.  E.  355 70    302 

Raleigh  &  Augusta  A.  L.  R.  R. 

Co.  v.  Jenkins, 68  N.  0.  R.  499 410 

Raleigh  &  Augusta  A.  L.  R.  R. 

Co.  v.  Jenkins, 68  K  C.  R.  502 334 

Raleigh  &   Gaston   R.    R.    Co., 

Pugh  v Phil.  L.  R.  359 457 

Raleigh   &  Gaston  R.    R.    Co., 

Vaughanv 63  N.  C.  R.     11 158 

Raleigh  &  Gasion  R.  R.  Co.  v. 

Reid, 64  N.  C.  R.  155 

Ramsay  v.  Hanner, 64  N.  C.  R.  668 

Ramsay,  McNinch  v 66  N.  C.  R.  229 

Ramsour  v.  Ramsour 63  N.  C.  R.  231 

Ramsour,  Shuford  v 63  N.  C.  R.  622 

Ramsour  v.  Ramsour, 65  N.  C.  R.  628 

Ramsour,  Frey  v 66  N.  C.  R.  466 

Rand  v.  State  of  North  Carolina,  65  N.  C.  R.  194 

Rankin  v.  Allison, 64  N.  C.  R.  673 

Rankin,  Johnson  v 70  N.  C.  R.  550 

Ransom  v.  Lewis, 63  N.  C.  R.     43 

Ransom  v.  McClees, 64  N.  C.  R.     17. .  .109    366 

Rawles,  State  v 65  N.  C.  R.  334 

Ratts,  State  v 63  N.  C.  R.  503 

Raxter,  Loftis  v 66  N.  C.  R.  340 

Ray,  McKay  v 63  N.  C.  R.     46 

Rea,  Howie  v 70  N.  C.  R.  559 

Reade  v.  Hamlin, Phil.  Eq.  R.  128 

Reddick  v.  Moore 65  N.  C.  R.  382 

Redman  v.  Turner, 65  N.  C.  R.  445 

Redman  v.  Redman 65  N.  C.  R.  546 

Redman  v.  Redman, 70  N.  C.  R.  257 

Redmond  v.  Burroughs, 63  N.  C.  R.  242 

Reece  v.  Reece, 66  N.  C.  R.  377 

Reed  v.  Farmer, 69  N.  C.  R.  533 

Reeves,  Adams  v 68  N.  C.  R.  135 

Reid  v.  Ral.  &  Gas.  R.  R.  Co. , . .  64  N.  C.  R.  155 

Reid  v.  Wil.  &  Wei.  R.  R.  Co.,.  64  N.  C.  R.  226 

Reid  v.  Spoon, 66  N.  C.  R.  415 

Reiger  v.  Davis, 67  N.  C.  R.   185 

Reiger  v.  Com'rs  of  Beaufort, . .   70  N.  C.  R.  319 

Reilly,  Lute  v 65  N.  C.  R.    20 

Reinhardt,  State  v 63  N.  C.  R.  547   

Reitzel  v.  Eckard, 65  N.  C.  R.  673 

Reynolds  v.  McKenzie, Phil.  Eq.  R. 


86 

197 

61 

295 

9 

202 

145 

479 

67 

359 

372 

91 

471 

136 

370 

374 

34 

247 

113 

270 

108 

54 

484 

187 

446 

199 

21 

150 

316 

458 

384 

28 

355 

397 

86 

87 

280 

217 

396 

471 

232 

337 

491 

261 

301 

NAMES  OF  CASES. 


LIII 


NAMES  OF  PARTIES. 

Reynolds  v.  State  of  N  C, 

Reynolds,  McCandless  v 

Reynolds,  State  v 

Reynolds,  Hardy  v 

Rhodes  in  re 

Rhodes,   State  v 

Rhyne  v.  "Wacasser, 

Rhyne,  Taylor  v * 

Rhyne,  Grier  v 

Rhyne,  Grier  v 

Rice  v.  Keith, 

Rice,  Stilley  v 

Rich,  Henry  v 

Richards  v.  Baurman, 

Richards  v.  Schegelrnith, 

Richardson,  Bingham  v 

Richmond  &  Danville  R.  R.  Co., 

Turner  v 

Richardson,  Martin  v 

Riddick  v.  Hinton, 

Riddick  v.  Moore, 

Riddle,  McXeill  v 

Rintels,  Sharpe  v 

Rintels,   Alexander  v 

Rippy,  Darwin  v 

Ritchey,  Fisher  v 

Rivers,  Council  v 

Robards,  Elliott  v 

Robbins,    Ex  parte, 

R  jberts  v.  Oldham, 

Roberts  v.  Roberts, 

Roberts  v.  Roberts,    

Roberts,  Hutcheson  v , 

Robertson,  Pace  v 

Robeson  v.  Brown, 

Robeson  v.  Lewis, 

Robinson,  Baker  v 

Robinson  v.  Mclver, 

Robinson,  "White  v 

Robinson  v.  Willoughby, 

Robinson  v.  Willoughby, 

Robinson,  Cannon  v 

Robinson  v.  Willoughby, 

Rockwell,  Wil  liums  v , 

Rogers  v.  Hi  77 


REPORTER.  PAGE  OF  DIGEST. 

64  X.  C.  R.  460 67 

67  X.  C.  R.  268 158 

68  N.  C.  R.  264 68 

69  X.  C.  R.   5 51  274 

65  X.  C.  R,  516 93 

Phil.  L.  R.  453 32 

63  X.  C.  R.  36 362 

65  X.  C.  R.  530 232 

67  X.  C.  R.  338 38  105 

69  X.  C.  R.  346  105 

63  X.  C.  R.  319 148 

67  X.  C.  R.  178 183 

64  X.  C.  R.  379 179  374 

65  K  C.R.I  62 266  354 

65  X.  C.  R.  150 103  122 

Phil.  L.  R.  315 382 

70  X.  C.  R.   1 412 

68  X.  C.  R.  255 446 

Phil.  L.  R.  291 184 

65  X.  C.  R.  382  187  446 

66  X.  C.  R.  290 137  379  479 

Phil.  L.  R.  34 282 

64  X.  C.  R.  634 412 

63  X.  C.  R.  318 (See  errata.) 

64  X.  C.  R.  172 408 

65  X.  C.  R.  54 438 

70  X.  C  R.  181 105 

63  X.  C.  R.  309 92 

63  X.  C.  R.  297 178  353 

64  X.  C.  R.  693 271 

65  X.  C.  R.  27 477 

67  X.  C.  R.  223 361 

65  X.  C.  R.  550 54 

63  X.  C.  R.  554 86  440 

64  X.  C.  R.  734 21  156 

63  X.  C.  R.  191 54 

63  X.  C.  R.  645 317  320  324 

64  X.  C.  R.  698 221 

65  X.  C.  R.  520 339 

67  X.  ('.  R  84  13 

67  N.  O.  R.  53 (See  errata.) 

70  X.  C.  R.  358  341 

..  C.  R.  325 2-0 

239 


LIV  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Rogers  v.  Holt, Phil.  Eq.  R.  108 328 

Rogers,  ex  parte,    63  N.  C.  R.  110 493 

Rogers  v.  Hinton, 63  N.  C.  R.    78 240 

Rogers  v.  Goodwin, 64  N.  C.  R.  278 21     343 

Rogers,  Sluder  v 64  N.  C.  R.  289 232 

Rogers  v.  McKenzie,   65  N.  C.  R.  218 186 

Rogers,  Smith  v 65  N.  C.  R.  181 327 

Rogers,  Thompson  v 69  K  C.  R.  357 354 

Rollins.  Duvall  v 68  N.  C.  R.  220 234 

Rose  v.  Coble, Phil.  L.  R.  517 144     378 

Rose,  State  v Phil.  L.  R.  406 166 

Rose  v.  Rose, 63  K  C.  R.  391 489 

Roseman  v.  Pless, 65  N.  C.  R.  374 198 

Roseman,  State  v 66  N.  C.  R.  634 172 

Roseman,  Lippard  v 70  N.  C.  R.    34  ..... .  421 

Roseman,  State  v 70  N.  C   R.  235 399 

Ross  v.  Alexander,   65  N.  C.  R.  576 277 

Ross,  Hemphill  v 66  N.  C.  R.  477 340 

Rountree  v.  Barnett, 69  N.  O.  R.    76 70     403 

Rouse,  Swepson  v 65  N.  C.  R.    34 45    381     474 

Rowark  v.  Holmesly,  68  N.  C.  R.    91 31 

Rowark  v.  Gaston,   67  N.  C.  R.  291 114 

Rowland,  Leffler  v Phil.  Eq.  R.  143 324 

Rowland  v.  Perry, 64  N.  C.  R.  578 404 

Rowland  v.  Thompson, 64  N.  C.  R.  714 18    296 

Rowland  v.  Thompson, 65  N.  C.  R.  110 297 

Rowland  v.  Hilliard, 68  K  C.  R.  506 29 

Rowland  v.  Gardner, 69  N.  C.  R.    53 362    3S5 

Royster  v.  Royster Phil.  L.  R.  226 124 

Royster,  Haskins  v 70  N.  C.  R.  601 106 

Royster,  State  v 65  N.  C.  R.  539 312 

Rucker,   State  v 68  N.  C.  R.  211 250 

Ruffin  v.  Com'rs  of  Orange,    ...   69  N.  C.  R.  498 466 

Rush  v.  Halcyon  Steamboat  Co.,  67  N.  C.  R.    47 23 

Rush  v.  Halcyon  Steamboat  Co  ,   68  N.  C.  R.    72   18       24 

Rushing,   State  v 69  N.  C.  R.    26 414 

Russ  v.  Gulick, 64  N.  C.  R.  301   266 

Russell  v.  Adderton,   64  N.  C.  R.  417 117 

Russell  v.  Stewart, 61  N.  C.  R.  487 101 

Rycraft,  Laws  v 64  N.  C.  R.  100 440 

Sackett,  Holmes  v 63  N.  C.  R.     58 37 

Salem  Female  Acad'y  v.  Phillips,  68  N.  C.  R.  491 225 

Balms  v.  Martin, 63  N.  C.  R.  608 124 

Sampson  v.  At.  &  N.  C.  R.R.Co. ,  70  N.  C.  R.  404 25 

Sanders,  Eason  y . , , 05  N.  C.  R.  216 377    419 


NAMES  OF  OASES.  LV 

ttAMES  of  parties.  reporter.                page  op  digest. 

Sanders,  Springs  v Phil.  Eq.  E.    67 97 

Sanders,  Smitherinan  v 64  N.  C.  R.  522 409 

Sanders,  Wade  v 70  N.  C.  R.  270 146    218    450 

Sanders,  Wade  v 70  N.  C.  R.  277 137 

Sapona  Iron  Co.  v.  Holt, 64  N.  C.  R.  335 106 

Satchwell,  Willard  v 70  N.  C.  R.  268 454 

Saulsbury  v.  Cohen, 68  N.  C  R.  289 418 

Saunders,  Jarman  v 64  N.  C.  R.  367 265     266     285 

Saunders  v.  Jarman, 67  N.  C.  R.     86 443 

Saunders  v.  Pelletier, 67  N.  C.  R.  361 194 

Savage  v.  Carter 64  N.  C.  R.  196 360 

Savage,  Cherry  v 64  N.  C.  R.  103 441 

Sawyer,  Wood  v Phil.  L.  R.  251 19     173    493 

Sawyer,  Grandy  v Phil.  Eq.  R.      8  314 

Schlachter,  State  v Phil.  L.  R.  520 238 

Schenck,  Ex  parte, 63  N.  C.  R.  601 386 

Schenck,  in  re, 65  N.  C.  R.  353 42 

Schlejelmich,  Richards  v 65  N.  C.  R.  150 103    122 

Schonwald  v.  Schonwald,    Phil.  Eq.  R.  215 133 

School  Committee  v.  Kesler, ...  66  2\T.  (J.  R.  323 22 

School  Committee  v.  Kesler, ...  67  N.  C.  R.  443 121     123    414 

Scott  v.  Elliott, Phil.  L.  R.  104 473 

Scott  v.  Elliott, 63  N.  C.  R.  215 425 

Scott,  Parker  v 64  N.  C.  R.  118 475 

Scott,  Statev 64  N.  C.  R.  586 310    393 

Scott  v.  Wilkie, 65  N.  C.  R.  376 45 

Scott  v.  Walton, 67  N.  C.  R.  109 449 

Scott,  Bryant  v 67  N.  C.  R.  391 424 

Sears,  State  v Phil.  L.  R.  146 83    253 

Sears  v.  McBride, 70  N.  C.  R.  152 127 

Sedberry,  Johnson  v. 65  N.  C.  R.       1 277    433 

Sedberry  v.  Com'rs  of  Chatham,  66  N.  C.  R.  486 331    332 

Sellars  v.  Johnson, 65  N.  C.  R.  104 105 

Sellars,  Staley  v 65  N.  C.  R.  467. 69 

Setzer  v.  Com'rs  of  Catawba, ...   64  N.  C.  R.  516 409 

Setzer  v.  Lewis, 69  N.  C.  R.  133 186 

Setzer,  Com'rs  of  Catawba  v . . . .  70  N.  C.  R.  420 356 

Seymour  v.  Cohen 67  N.  C.  R.  345 346 

Shaunonhouse,  Banks  v Phil.  L.  R.  284 204 

Shannonhouse,  Parker  v Phil.  L.  R.  209 83 

Shaunonhouse,  Whedbee  v Phil.  Eq.  R.  283 141 

Sharpe  v.  Riutels Phil.  L   R.     34 2S-2 

Sharpe,  Williams  v 70  N.  C.  R.  582 14 

Sharpe,  Walker  v 68  N.  C.  R.  363 480 

Sharpe,  At.,  T.  &  O.  R.  R.  Co.  v.  70  N.  C.  R.  909 210 


LVI  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Shaver,  Davis  v Phil.  L.  E.     18 19    282    401 

Shaver  v.  Shoemaker, Phil.  Eq.  E.  327 59      98     120 

Shaver  v.  Coni'rs  of  Salisbury, . .   68  N.  C.  E.  291 471 

Shaw,  McNeill  v Phil.  Eq.  E.    91 437 

Shaw  v.  Vincent, 64  K  C.  E.  690 101 

Shaw,  West  v 67  N.  C.  E.  483 62 

Shaw  v.  Coble, 63  N.  C.  E.  377 220 

Shaw,  Humphries  v 63  N.  O.  E.  341 128 

Shelton  v.  Fells, Phil.  L.  E.  178 184 

Shelton,  State  v 65  N.  C.  E.  294 16     171 

Shelton  v.  Davis, 69  N.  C.  E.  324 358 

Sherrard,  Wootten  v 68  N.  C.  B.  334 80    469 

Sherrell,  Ghormly  v 66  N.  O.  E.  527 303 

Shields,  Moore  v 68  N.  C.  E.  327 201 

Shields  v.  Jones, 6S  N.  C.  E.  488 201 

Shields,  Alsobrook  v 67  N.  C.  E.  333 66 

Shields,  Watson  v 67  N.  C.  E.  235 2S8 

Shields,  Moore  v 69  N.  C.  B.    50   227 

Shipman,  Turner  v 65  N.  C.  E.  623 367    454 

Shipp  v.  Hetrick, 63  N.  C.  E.  329 77 

Shirley,  State  v 64  N.  C.  E.  610 237 

Sheaf,  State  v 68  N.  C.  E  375 172 

Shober,  Happock  v 69  N.  C.  E.  153 278 

Shoemaker,  Shaver  v Phil.  Eq.  E.  327 59       98    120 

Shoffner,  Foust  v Phil.  Eq.  E.  242  98 

Shortridge  v.  Macon, Phil.  L.  E.  392  406 

Shuford  v  Eamsour, 63  N.  C.  E.  622 9 

Shuford,   State  v 69  N.  C.  E.  486 155     165 

Shuler  v.  Bryson, 65  N.  C.  E.  201 40 

Simmons  v.  Simmons, Phil.  Eq.  E.    63 133 

Simmons  v.  Wilson, 66  N.  C.  E.  336 464 

Simmons,  State  v 66  N.  C.  B.  622 426 

Simmons  v.  Cahoon, 68  N.  C.  E.  393 105 

Simmons  v.  Hassell,    68  N.  C.  E.  213 225     439 

Simons,   State  v 68  N.  C.  E.  378 251 

Simons,   State  v 70  N.  C.  E.  336 252 

Simonton  v.  Chipley, 64  N.  C.  E.  152 10      20 

Simonton  v.  Clark, 65  N.  C.  E.  525 327 

Simpson  v.  Sutton, Phil.  L.  E.  112 184 

Simpson  v.  Simpson, 63  N.  C.  E.  534 20     382 

Simpson  v.  Simpson, 70  N.  C.  E.  427   404 

Simpson,  Purser  v 65  N.  C.  E.  497 223 

Sims,  McCown  v 69  N.  C.  E.  159 338 

Sinclair,  Barry  v Phil.  L.  E.      7 2       36 

Sinclair  y.  State  of  N.  C, 09  N.  C.  E.    47 67    465 


KAMES  Oi?  OASES.  LYII 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Singletary  v,  Whitaker, Phil.  Eq.  R.    77 437 

Singletary,  Evans  v 63  N.  C.  R.  205 190 

Skinner,  Latham  v Phil.  Eq.  R.  292 302    485 

Skinner  v.  Maxwell, 66  N.  C.  R.    45 260     303 

Skinner  v.  Maxwell, 67  N.  C.  R.  257 65 

Skinner  v.  Maxwell, 68  N.  C.  R.  400 414 

Sledge  v.  Blum, 63  N.  C.  R.  374 19     264    488 

Sloan,  Charleton  v 64  N.  C.  R.  702 43 

Sloan,  Lewis 68  N.  C.  R.  557 47     398 

Sloan,  Mitchell  v 69  N.  C.  R.     10 25 

Sloan,  Martin  v 69  N.  C.  R.  128 268    269    403 

Sloan,  State  v 67  N.  C.  R.  357 246 

Sluder,  Woodfin  v Phil.  L.  R.  200 60      83    156 

Sluder  v.  Rogers, 64  N.  C.  R.  289 232 

Sluder,  Wells  v 70  N.  C.  R.     55 228 

Sluder,  Wells  v 68  N.  C.  R.  150 18 

Small,  Palin  v 63  N.  C.  R.  484 354 

Sinallwood,  Jacobs  v 63  N.  C.  R.  112 232 

Smith,  State  v Phil.  L.  R.  340 247 

Smith,  State  v Phil.  L.  R.  302 254    343    414 

Smith,  Grissett  v Phil.  L.  R.  164 210 

Smith,  Grissett  v Phil.  L.  R.  297 401 

Smith,  Penny  v Phil.  L.  R.     35 12 

Smith,  Sneed  v Phil.  L.  R.  595 174    393 

Smith  v.  Bryson, Phil.  Eq.  R.  267 353 

Smith  v.  Coble Phil.  Eq.  R.  332 98 

Smith,  Hargrove  v Phil.  Eq.  R.  165 97 

Smith,  Gibson  v 63  N.  C.  R.  103 99 

Smith  v.  Mcllwaine, 63  N.  C.  R.    95 385 

Smith  v.  Mitchell, 63  N.  C.  R.  620 19 

Smith  v.   Smith, 63  N.  C.  R.  637 495 

Smith  v  Moore,   63  N.  C.  R.  138 350 

Smith,  State  v 63  N.  C.  R.  234 248 

Smith  v.  Dewey. 64  N.  C.  R.  463 266 

Smith,  Garrett  v 64  N.  C.  R.    93 407 

Smith  v.  Gilmer, 64  N.  C.  R.  546 490 

Smith,  Hughes  v 64  N.  C.  R.  493 494 

Smith  v.  Love, 64  N.  C.  R.  439 107 

Smith  v.  N.  C.  R.  R.  Co., 64  N.  C.  R.  235 72 

Smith,  Parker  v 64  N.  C.  R.  291 281 

Smith,  Smithdeal  v 64  N.  C.  R.    52 495 

Smith,    State  v 65  N.  C.  R.  369 456 

Smith  v.  Webb, 64  N.  C.  R.  541 107 

Smith,  Swain  v 65  N.  U.  R.  211 417 

Smith,  Williams  v 65  N.  C.  R.    87 482 

8 


LVIII 


NAMES  OF  OASES. 


R.  181. 
R.  537. 
154. 

401. 

620. 
245. 


R. 
R. 


NAMES  OF  PARTIES.  REPORTER. 

Smith,  Woody  v 05  N.  C.  R.  116 

Smith  v.  Rogers, 65  N.  C. 

Smith,  Baucom  v 66  N.  C. 

Smith,  Kesler  v 66  N.  C. 

Smith,  Powell  v 66  N.  C. 

Smith,  State  v 66  N.  C.  R 

Smith,  Brown  v 67  N.  C.  R. 

Smith,  Matthews  v 67  N.  C.  R.  374. . 

Smith,  Hutchinson  v 68  N.  C.  R.  351 . . 

Smith,  Hutchinsan  v 68  N.  C.  R.  354. . 

Smith  v.  Hunt, 68  N.  C.  R.  482  . 

Smith,  Dancy  v 68  N.  C.  R.  179. . 

Smith,  Camp  v 68  N.  C.  R.  537. . 

Smith  v.  N.  C.  R.  R.  Co 68  N.  C.  R.  107. . 

Smith,  Pitts  v 69  N.  C.  R.      3  . 

Smith,   Stocks  v 69  N.  C.  R,  352. . 

Smith  v.  Mcllwaine, 70  N.  C.  R.  287 . . 

Smith  v.  Newbern, 70  N.  C.  R.    14  .. 

Smith,  Tate  v 70  N.  C.  R.  685.. 

Smithdeal  v.  Smith, 64  N.  C.  R.    52 . . 

Smitherman,  McKay  v 64  N.  C.  R.    47 . . 

Smitherman  v.  Sanders, 64  N.  C.  R.  522 . . 

Sneed  v.  Smith, Phil.  L.  R.  595 . . 

Sneed,   Hunt  v Phil.  Eq.  R.  351 . . 

Sneed,   Hunt  v 64  N.  C.  R.  176  . 

Sneed,  Hunt  v 64  N.  C.  R.  180  , 

Southerland  v.  Stout,   68  N.  C.  R.  446 . , 

Southerland,  Barden  v 70  N.  C.  R.  528. 

Southern  Express  Co.,  Cunning- 
ham v 67  N.  C  R.  423 

Southern  Express  Co.,  Froelick  v  67  N.  C.  R.      1 

Sowers  v.  Earnhart, 64  N.  C.  R.    96 . 

Souls,    State  v Phil.  L.  R.  151 . 

Sowers,  Loftin  v 65  N.  C.  R.  251 

Spainhour,  Hampton  v 63  N.  C.  R.  569 

Spainhour,  Harper  v 64  N.  C.  R.  629 . 

Sparks  v.  Sparks, 69  N.  C.  R.  319. 

Sparks  v.  Messick, 65  N.  C.  R.  440 . 

Sparrow,  Withers  v 66  N.  C.  R.  129 . 

Speed,  Joyner  v 68  N.  C.  R.  337. 

Speight,  State  v 69  N.  C.  R.    72. 

Spencer,  State  v 01 11.  C.  R.  316 . 

Spicer,   Coor  v  65  N.  C.  R.  401. 

Spicer,   Fulghum  v 67  N.  C.  R.    18. 

Spivey,  Futrill  v 63  N.  C.  R.  526. 


FAGE  OF  DIGEST. 

198 
327 

55 

120  457 

55 

415 

7 


108 


153 


203 
157 


174 


159 

364 

235 

361 

318 

159 

131 

444 

399 

471 

273 

495 

77 
409 
393 
262 
295 
297 
483 

57 


405 

(See  errata.) 

440 

208  313  428 

447 

19 

109 

134 

487 

240 

492 

152  260 

393 

483 

(See  errata.) 

19 


NAMES  OF  CASES.  LIX 

NAMFS  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Spivey,   Jackson  v 63  N.  C.  R.  261 214 

Spoon,  Reid  v 66  N.  C.  R.  415 280 

Sprague,  Howerton  v 64  K  C.  R.  451 265    460 

Springs  v.  Sanders, Phil.  Eq.  R.    67 97 

Sprinkle,  Parks  v 64  N.  C.  R.  637 182 

Sprinkle  v.  Hutchson, 66  N.  C.  R.  450 268     297 

Sprinkle  v.  Martin, 69  N.  C.  R.  175 229 

Sprinkle  v.  Martin, 66  N.  C.  R.    55 (  178 

Sprinkle  State  v 65  N.  C.  R.  463 '  248 

Stafford,   Foust  v 70  N.  C.  R.  115 345 

Staley  v.  Sellars, 65  N.  C.  R.  467 69 

Stallings,  Parker  v Phil.  L.  R.  590 53 

Stanback,  Little  v 63  N.  C.  R.  285 336 

Stancill  v.  Branch, Phil.  L.  R.  217 12 

Stancill  v.  Branch, Phil.  L.  R.  306   177 

Stancill  v.  Calvert, 63  N.  C.  R.  616 140 

Stanfield,  Winstead  v 68  N.  C.  R.    40 225 

Stanley,  Clark  v 66  N.  C.  R.     59 347 

Stanley  v.  Mason 69  N.  C.  R.      1   373 

Stanly  v.  Massingill, 63  N.  C.  R.  558 10     387 

Stanly,   Lane  v 65  N.  C.  R.  153 472 

State  v.  Adair, 66  N.  C.  R.  298 90     171     306 

State  v.  Adair, 68  N.  C.  R.    68 231     458 

State  v.  Adams,    65  N.  C.  R.  537 212 

State  v.  Alford, 68  N.  C.  R.  322 245 

State  v.  Allen, 69  N.  C.  R.    23 251 

State  v.  Allison,   Phil.  L.  R.  316  51 

State  v.Atraan 64  N.  C.  R.  364 255     257 

State  v.  Andrew, Phil.  L.  R.  205 162 

State  v.  Avery, 64  N.  O.  R.  608 236 

State  v.  Bailey, 65  N.  C.  R.  426 21 

State  v.  Baker, 63  N.  C.  R.  276 256    299 

State  v.  Baker, 65  N.  C.  R.  332 33 

State  v.  Baker, 69  N.  C.  R.  147 259    398 

State  v.  Baker, 70  N.  O.  R.  530 260 

State  v.  Banks, Phil.  L.  R.  577 310 

State  v.  Barringer Phil.  L.  R.  554  298 

State  v.  Beatty, Phil.  L.  R.     52 247    253 

State  v.  Beatty, 66  N.  C.  R.  648 53 

State  v.  Bell,  Phil.  L.  R.     76.... 83    348    405    463 

State  v.  Bell,  65  N.  C.  R.  313 310 

State  v.  Blackwelder Phil.  L.  R.     38 253 

State  v.  Blagge,     Phil.  L.  R.     11 463 

State  v.  Blalock, Phil.  L.  R.  242 15 

State,  Bledsoe  v 64  N.  C.  R.  392 67 


LX  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

State  v.  Bobbitt, 70  N.  C.  R.    81 358    400 

State  v.  Branch, •.  68  N.  C.  B.  186 307 

State  v.  Brantley, 63  N.  C.  B.  518 169    393 

State  v.  Bray, 67  N.  C.  B.  283 258 

State  v.  Brevard, Phil.  Eq.  B.  141 464 

State  v.  Broadway, 69  N.  C.  B.  411 53 

State  v.  Broadnax Phil.  L.  B.     41 236 

State  v.  Brown 67  N.  C.  E.  435 397 

Statev.  Brown, 67  N.  C.  B.  470 149 

State  v.  Brown, 67  N.  C.  B.  475 229 

State  v.  Brown 68  N.  C.  B.  554 226 

State  v.  Brown 70  N.  C.  B.    27 421 

State  v.  Bruner 65  N.  C.  B.  470 171 

State  v.  Bryant, 65  N.  C.  B.  327 30 

State  v.  Buckner Phil.  L.  B.  558 208 

State  v.  Bullock, 63  N.  C.  B.  570 257    306 

State  v.  Bunn 65  N.  C.  B.  317 312 

State  r.  Burt 64  N.  C.  B.  619 310 

State  v.  Burwell, 63  N.  C.  B.  661 33 

State  v.  Butler, 65  N.  C.  B.  309 312 

State  v.  Campbell, 68  N.  C.  E.  157 24 

State  v.  Cauble 70  N.  C.  B.    62 14    160    428 

State  v.  Caudle, 63  N.  C.  E.    30 208 

State  v.  Cherry 63  N.  C.  R.  493 31     151     169 

State  v.  Church, 63  N.  C.  R.    15 33 

State  v.  Collins,  70  N.  C.  R.  241   260     307 

State  v.  Cooke, Phil.  L.  R.  535  15     256 

State  v.  Covington, 70  N.  C.  R.    71 209 

State  v.  Credle, 63  N.  C.  R.  506 20 

State  v,  Custer, 65  N.  C  R.  339 483 

State  v.  Darr, 63  N.  C.  E.  516 113 

State  v.  Davidson, 67  N.  C.  R.  119 151 

State  v.  Davis, 63  N.  C.  R.  578 163 

State  v.  Davis 65  N.  C.  R.  298 294 

State  v.  Davis, 68  N.  C.  R.  297 428 

State  v.  Davis, 69  N.  C.  R.  313 212    259 

State  v.  Davis, 69  N.  C.  R.  495 251     295     357 

State  v.  Davis, 69  N.  C.  R.  383 357 

State  v.  Deal, 64  N.  C.  R.  270 429 

State  v.  Deaton,   65  N.  C.  R.  496 244 

Statev.  Dewer, 65  N.  C.  R.  572 63 

State  v.  Divine, 69  N.  C.  R.  390 24 

State  v.  Dobson, 65  N.  C.  R.  346 426 

State  v.  Dollar 66  N.  C.  R.  626 495 

State  v.  Douglass, 63  N.  C.  R.  500 284    306 


NAMES  OF  CASES. 


LXI 


NAMES  OP  PARTIES.  REPORTER. 

State  v.  Drake, 64  N.  C.  R.  589. 


State  v.  Dula, Phil. 

State  v.  Dula, Phil. 

State  v.  Dunlap,  65  N. 


State  v 
State  v 
State  v 
State  v 
State  v 
State  v 
State  v 
State  v, 


Dunlap,   65  N 

Eason, 70  N 

Elam, Phil. 

Ellen,  68  N 

Elliott, 68  N.  C.  R 

Engelhard, 70  N.  C.  R 


L.  R.  211. 
L.  R.  437. 
R.  491. 
R.  288. 
R.  88. 
R.  460. 
R.  281 
124. 
377. 


Evans, 69  N.  C.  R.    40 


219. 

78 

647. 

563. 


Fann, 65  N.  C.  R.  317 . , 

State  v.  Farrow, Phil.  L.  R.  161 . 

State  v.  Ferguson,  67  K  C.  R. 

State  v.  Fisher, 70  N.  C.  R. 

State  v.  Freeman, 66  N.  C.  R. 

State  v.  Fulford,   Phil.  L.  R. 

State  v.  Fulkerson, Phil.  L.  R.  233 

State  v.  Fulton, 66  N.  C.  R.  632 

State  v.  Gaskins, 65  N.  C.  R.  320. 

State  v.  Glisson,  Phil.  L.  R.  195 

State  v.  Graham, 68  N.  C. 

State  v.  Gwynn, Phil.  L. 

State  v.  Hairston,  63  N.  C. 


R. 
R. 
R. 
R. 
R. 


247. 

445. 

415. 

244. 
13 
R.  467 . 
R.  612., 
R.  668.. 
R.  658  . 


State  v.  Hales, 65  N.  C. 

State  v.  Hampton,   63  N.  C. 

State  v.  Haney, 67  N.  C. 

State  v.  Hanks, 66  N.  C. 

State  r.  Hanner, 64  N.  C. 

State  v.  Hare,    70  N.  C. 

State  v.  Hargett, 65  N.  C.  R.  669 

State  v.  Hargrove 65  N.  C.  R.  466 

State  v.  Harper, 61  N.  C.  R.  129 

State  v.  Harris, 63  N.  C.  R.       1 

State  v.  Harris, 64  N.  C.  R.  127 

State  v.  Harrison, 69  N.  C.  R.  264 

State  v.  Hairison, 69  N.  C.  R. 

State  v.  Harston, 63  N.  C.  R. 

State  v.  Haughton, 63  N.  C.  R. 

State  v.  Hawes, 65  N.  C, 

State  v.  Haywood, Phil.  L 

State  v.  Heidelburg 70  N.  C, 

State  v.  Henderson Phil.  L.  R. 

State  v.  Henderson, 66  N.  C.  R. 

State  v .  Henderson 08  N.  C.  R. 


144. 

294. 

491. 
R.  301. 
R.  37G 

496. 

229. 

627. 

348. 


R 


PAGE  OF  DIGEST. 
248      301 

166 

167  255 
253 

170  394 

210 

51 

209 

172 

81 

251  313 

(See  errata.) 

309 

245  453 
313 
258 
309 

236  254 
306 
311 
247 
397 
112 
336 

52 

32 

16  249 

209 

197 

229 

237  393 
414 
310 

108  169  238 
310 
398 
212 
147 
455 
295 
269 
34  295 
51 
312 


251 


300 


^XII  KAMBS  OF  CASES. 


465 291 

305 
413 

305 


305 311 

246  310 


395 311 

211 244 


NAMES  OF  PARTIES.  REPORTER.                      PAGE  OF  DIGEST. 

State,  Henry  v 68  N.  C.  E. 

State  v.  Hicks, Phil.  L.  E.  441 

State  v.  Hodges, Phil.  l.  E.  231 

State  v.  Holmes, 63  N.  C.  E.     18 

State  v.  Horan, Phil.  l.  E.  571 247 

State  v.  Horton, 68  N.  C.  B.  595 246 

State  v.  House, 65  N.  C.  E.  315 312 

State  v.  Howard, G7  N.  C.  E.     24 244 

State  v.  Jackson, 65  N.  C.  E 

State  v.  Jarvis, 63  K  C.  E.  55G 

State  v.  Jefferson, 66  N.  C.  E.  309 22       65     258 

State  v.  Johnson, Phil.  l.  E.  140 428 

State  v.  Johnson, Phil.  L.  E.  186 63 

State  v.  Johnson, 64  N.  C.  R.  581 ..... .                        293 

State  v.  Johnson,    67  N.  C.  R.    55 172     250     258 

State  v.  Jones, 65  N.  C.  E. 

State  v.  Jones,    67  N.  C.  R 

State  v.  Jones, 67  N.  C.  R.  285 

State  v.  Jones, 68  N.  C.  E.  443 154 

State  v.  Jones, 69  N.  C.  R.     16 . 

State  v.  Jones,    69  N.  C.  R.  364. 

State  v.  Jones, 70  N.  C.  E.     75 . 

State  v.  Josey 64  N.  C.  R.    56 

State  v.  Kearzey, Phil.  L.  R.  481 . 

State  v.  Keith,   63  N.  C.  R.  140 . 

State  v.  Kent, 65  N.  C.  R.  311 170     311     335 

State  v.  Ketchey, 70  N.  C.  R.  621 

State  v.  King, 69  N.  C.  R.  419 

State  v.  Kirkham,    63  N.  C.  R.  246 

State  v.  Knox Phil.  l.  R.  312 

State  v.  Krebs, - . .  64  N.  C.  R.  604 329 

State  v.  Lamb, 65  N.  C.  R.  419 211 

State  v.  Lawson,; Phil.  L.  R.    47 162 

State  v.  Leak, Phil.  L.  R.  450 236 

State  v.  Ledford, 67  N.  C.  R.     60 312 

State  v.  Lindsey, Phil.  L.  R.  468 32     252 

State  v.  Lindhow,   69  N.  C.  R.  214 . 245 

State  v.  Locust,    63  K  C.  R.  574 19     113 

State  v.  Lnwhorne, 66  N.  C.  R.  638 163 

State  v.  Ludwick, Phil.  L.  R.  401 166     167 

State  v.  Lupton, 63  N.  C.  R.  483 112 

State  v.  Lutz, 65  N.  C.  R.  503 464 

Satev.  Lytlo, 64  N.  C.  R.  255 133     211 

S  ate  v.  Mabry, 64  N.  C.  E  592 33 


396 


290     403 

259    458 

206 

257 

255     309 

15 


91  154  260  307 

31 

168 

254    357 


Stile  v.  Mac, 65  N.  G  R,  344 2Q9 


NAMES  OF  CASES.  LXIII 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

State  v.  Manuel, 64  K  C.  R.  601 149     209    257 

State  v.  Marsh, 61  N.  C.   El.  37S 214 

State  v.  Marshall, Phil.  L.  R.     49 166    413 

State  v.  Martin, 69  N.  C.  R.  175 229 

State  v.  Martin, Phil.  L.  R.  326  52 

State  v.  Martin, 70  N.  C.  R.  628 400 

State  v.  Mason, 66  N.  C.  R.  636 245 

State  v.  Massage, 65  N.  C.  R.  480 237 

State  v.  Matthews, 66  N.  C.  R.  106 163 

State  v.  McAfee, 64  N.  C.  R  339 306 

State  v.  McClure, Phil.  L.  R.  491 256 

State  v.  McCurry, 63  N.  C.  R.     33 168    306 

State  v.  McGalliard Phil.  Eq.  R.  346 359 

State  v.  Mcintosh, 64  N.  C.  R.  607 52 

State  v.  McMillan, 68  N.  C.  R.  410 11     313 

State  v.  McQuaig, 63  N.  C.  R.  550 52 

State  v.  McPherson, 70  N.  C.  R.  239 64 

State  v.  Mercer, 67  N.  O.  R.  266 (see  errata.) 

State  v.  Merritt, Phil.  L.  R.  134 32 

State  v.  Minton,  Phil.  L.  R.  196  247 

State  v.  Mitchell,    Phil.  L.  R.  447 162 

State  v.  Moody, 69  N.  C.  R.  529 415 

State  v.  Moony,    Phil.  L.  R.  *3i 32 

State  v.  Moony,    64  N.  C.  R.    54 170 

State  v.  Moore, 69  N.  C.  R.  267 237 

State  v.  Mordecai,    68  N.  C.  R.  207 63    259 

State  v.  Morris, 69  N.  C  R.  414 150 

State  v.  Morrison,    68  N.  C.  R.  162 225 

State  v.  Murray, 63  N.  C.  R.    31 167 

State  v.  Myerfleld,    Phil.  L.  R.  108 31 

State  v.  Newby, 64N.C.K.    23 258 

State  v.  Nutt Phil.  L.  R.    20 253    457 

State  v.  Oliver 70  N.  C.  R.    60 34 

State  v.  Owen, Phil.  L.  R.  425  305 

State  v.  Painter, 70  N.  C.  R.    70 252 

State  v.  Palin,  03  N.  C.  R.  471   52 

State  v.  Parker,    Phil.  L.  R.  473 255 

State  v.  Parker,    65  N.  C.  R.  453 171     248 

State  v.  Parker,    66  N.  C.  R.  624 394 

State  v.  Patterson, 68  N.  C.  R.  292 165     251 

State  v.  Patterson, 63  N.  C.  R.  520 169 

State  v.  Pearmon, Phil.  L.  R.  371 208 

State  v.  Peebles, 67  N.  C.  R.    97 361     419 

State  v.  Peebles, 70  N.  C.  R.    10 228 

State  v.  Pender,   06  N.  C.  R.  313  89 


LXIV  NAMES  OF  CASES. 

NAMES  OF  PARTIES.  REPORTER.                     PAGE  OF  DIGEST. 

State  v.  Pendleton,    65  N.  C  R.  617 295 

State  v.  Penland, Phil.  L.  R.  222 247 

State  v.  Pepper,   68  N.  C.  R.  259 250 

State  v.  Perkins, 66  N.  C.  R.  126 151     306 

State  v.  Perry, 64  K  C.  R.  305 206 

State  v.  Perry, 64  N.  C.  R.  598 294 

State  v.  Phelps, 65  N.  C.  R.  450 248 

State  v.  PhiEer,. 65  N.  C.  R.  321 206 

State  v.  Phillips, 66  N.  C.  R.  646 21 

State  v.  Phillips, 70  N.  C.  R.  462 151 

State  v.  Potter, Phil.  L.  R.  338 254 

State  v.  Porter, 69  N.  C.  R.  140 293 

State  v.  Powell, 70  N.  C.  R.     67 252 

State  v.  Prince, 63  N.  O.  R.  529 256 

State  v.  Pulley 63  N.  C.  R.       8 31     168 

State  v.  Purdie, 67  N.  C.  R.    25 250 

State  v.  Purdie, 67  N.  C.  R.  326 155    250 

State  v.  Putney, Phil.  L.  R.  543 .  309 

State  v.  Queen, 66  N.  C.  R.  615 415 

State,  Rand  v 65  N.  C.  R.  194 67 

State  v.  Ratts 63  N.  C.  R.  503 247 

State  v.  Rawles, 65  N.  C.  R.  334 34 

State  v.  Reinhart, 63  N.  C.  R.  547 337 

State  v.  Reynolds, 64  N.  C,  R.  460 67 

State  v.  Reynolds, 68  N.  C.  R.  264 68 

State  v.  Rhodes, Phil.  L.  R.  453 32 

State  v.  Robinson, 64  N.  C.  R.  698 221 

State  v.  Rose, Phil.  L.  R.  406 166 

State  v.  Roseman, 66  N.  O.  R.  634 172 

State  v.  Roseman, 70  N.  C.  R.     34 421 

State  v.  Roseman 70  N.  O.  R.  235 399 

State  v.  Royster 65  N.  C.  R.  539 312 

State  v.  Rucker, 68  N.  C.  R.  211 250 

State  v.  Rushing, 69  N.  C.  R.     29 414 

State  v.  Schlachter Phil.  L.  R.  520 238 

State  v.  Scott 64  N.  C.  R.  586 310    393 

State  v.  Sears, Phil.  L.  R.  146 83    253 

State  v.  Shelton, '65  N.  O.  R.  294 16    171 

State  v.  Shirley,   64  N.  C.  R.  610 237 

State  v.  Shoaf, 68  N.  C.  R.  375  172 

State  v.  Shuford, 69  N.  C.  R.  486 155    172 

State  v.  Simmons 66  N.  C.  R.  622 426 

State  v.  Simons, 68  N.  C.  R.  378 251 

State  v.  Simons, 70  N,  C.  R.  336 252 


ttAMES  OP  OASES.  LXV 


NAMES  OP  PARTIE8.  REPORTER. 

State  v.  Sinclair, 69  N.  C.  R.    47. 

State  v.  Sloan, 67  N.  C.  R.  357  , 

State  v.  Sloan, 69  N.  C.  R.  128. . 

State  v.  Sluder, 70  N.  C.  R.    55.. 

State  v.  Smith,    Phil.  L.  R.  302. . 

State  v.  Smith,    Phil.  L.  R.  340. . 

State  v.  Smith,    63  K  C.  R.  234. , 

State  v.  Smith,    65  N.  C.  R.  369 . . 

State  v.  Smith, 66  N.  C.  R.  620  . 

State  v.  Smith, 69  N.  C.  R.  352  . . 

State  v.  Sowls, Phil.  L.  R.  151 . . 

State  v.  Speight, '....  69  N.  C.  R.    72. . 

State  v.  Spencer, 64  N.  C.  R.  316. . 

State  v.  Sprinkle, 65  K  C.  R.  463 . . 

State  v.  Stafford, 70  N.  C.  R.  115  . 

State  v.  Staton, 66  N.  C.  R.  640 . 

State  v.  Starkey, 63  N.  C.  R.      7  . 

State  v.  Swain, 65  N.  C.  R.  330 . . 

State  v.  Tochanatah,    64  N.  C.  R.  614 . . 

State  v.  Tapscott, 68  N.  C.  R.  300 . . 

State  v.  Tate, 68  N.  C.  R.  546  . 

State  v.  Tate, 70  K  C.  R.  161 . . 

State  ▼.  Tatom,   69  N.  C.  R.    35 . . 

State  v.  Taylor, Phil.  L.  R.  508 . . 

State  v.  Taylor, 69  N.  C.  R.  543. , 

State  v.  Thomas 64  N.  C.  R.    74 . . 

State  v.  Tisdale,  Phil.  L.  R.  220 . . 

State  v.  Turner, 65  N.  C.  R.  592 . . 

State  v.  Turner, 66  N.  C.  R.  618  . 

State  v.  Underwood, 63  N.  C.  R.    98  . 

State  v.  Underwood,  64  N.  C.  R.  599 . . 

State  v.  University, 65  N.  C.  R.  714. . 

State  v.  Vannoy, 65  N.  C.  R.  532. . 

State  v.  Vinson, 63  N.  C.  R.  335. . 

State  v.  Waldrop, 63  N.  C.  R.  507. . 

State  v.  Walker 65  N.  C.  R.  461 . . 

State  v.  Whitaker, 66  N.  C.  R.  630. . 

State  v.  White, 68  N.  C.  R.  158. . 

State  v.  Whitehurst, 70  N.  C.  R.    85 . . 

State  v.  Whitfield, 70  N.  C.  R.  356  . . 

State  v.  Williams, 65  N.  C.  R.  398 . . 

State  v.  Williams, 65  N.  C.  R.  505  . 

State  v.  Williams, 67  N.  C.  R.    12 . . 

State  v.  Williams, 68  N.  C.  R.    60  . 

State  v.  Willie, 63  N.  C.  R.    26. . 

9 


PAGE  ( 

)P  DIGEST. 

67 

465 
246 

268 

269 

403 

228 

254 

843 

414 
247 
248 
456 
415 
444 

208 

343 

428 

152 

260 
398 
248 
345 
249 

168 

345 

414 
34 
237 
355 
349 
350 
454 

166 

167 

246 
207 

144 

170 
253 
312 
312 
147 
351 
304 

34 
169 

52 
456 
469 

172 

306 
252 
165 
33 
389 
165 
172 
236 

LXVI  NAMES  OF  OASES. 

WAMES  OP  PARTIE8.  REPORTER. 

State  v.  Wilson, Phil.  L.  R.  237. . 

State  v.  Wilson, 67  N.  C.  R.  456. . 

State  v.  Wise, 66  N.  C.  R.  120. . 

State  v.  Wise, 67  N.  C.  R.  281.. 

State  v.  Wiseman,    63  N.  C.  R.  536. . 

State  t.  Wiseman,   68  N.  C.  R.  203 . . 

State  v.  Woodruff, 67  N.  C.  R.    89. . 

State  v.  Worthington, 64  N.  C.  R.  594 . . 

State  v.  Wright, Phil.  L.  R.  486. . 

State  v.  Yarborough, 70  N.  C.  R.  250  . 

State  v.  York, 70  N.  C.  R.    66. . 

Staton,  State  v 66  N.  C.  R.  640. . 

Stedman  v.  Jones, 65  N.  C.  R.  388. . 

Steele,  Lawrence  v 66  N.  C.  R.  584. . 

Steele  v.  Com'rs  of  Rutherford,.  70  N.  C.  R.  137. . 
Stenhouse,  Bank  of  Charlotte, . .  70  N.  C.  R.  703. . 
Stenhouse  v.  Charlotte,  C.  &  A. 

R.  R.  Co., 70  N.  C.  R.  542.. 

Stephenson  v.  Todd, 63  N.  C.  R.  368  . 

Stephenson,  Vaughn  v 69  N.  C.  R.  212. . 

Stevenson,  Askew  v Phil.  L.  R.  288. . 

Stewart,  Russell  v 64  N.  C.  R.  487 . . 

Stickney  v.  Cox, Phil.  L.  R.  495. . 

Stilley  v.  Rice 67  N.  C.  R.  178. . 

Stith  v.  Lookabill 68  N.  C.  R.  227. . 

Stokely,  Burke  v 65  N.  C.  R.  569. . 

Stokes,  Heilig  v 63  N.  C.  R.  612 . . 

Stokes  v.  Howerton, 67  N.  C.  R.     50 . . 

Stokes  v.  Cowles, 70  N.  C.  R.  124. . 

Stokes  v.  Smith. 65  N.  C.  R.  352 . . 

Stoltz,  Pegram  v 67  N.  C.  R.  144 

Stone  v.  Latham 68  N.  C.  R.  421 . 

Storkey,  State  v 63  N.  C.  R.       7. . 

Stout,  Southerland,  v 68  N.  C.  R.  446. . 

Stout  v.  Woody, 63  N.  C.  R.     37. . 

Strayhorn,  Hogan  v 65  N.  C.  R.  279 . . 

Street  v.  Bryan 65  N.  C.  R.  619 . . 

Street  v.  Com'rs  of  Craven, 70  N.  C.  R.  644. . 

Stroud  v.  Stroud, Phil.  L.  R.  525 . . 

Sudderth,  Harper  v Phil.  Eq.  R.  279 . . 

Sudderth,  Greenlee  v 65  N.  C.  R.  470 . . 

Sudderth  v.  McCombs, 65  N.  C.  R.  186. . 

Sudderth  v.  McCombs, 67  N.  C.  R.  353 . . 

Sugg,  Walton  v Phil.  L.  R.     98 . . 

Suit,  Kingsbury  v 66  N.  C.  R.  601.. 


PAGE  OP  DIGEST. 

32 

254 
250 
248 
258 
10 

24 

259 

53 

170 

163 

209 
426 
249 

17 

45 

416 

173 

395 
373 
273 

9 
37 

297 

36 

404 
101 
17 
188 
175 

286 

287 

86 

264 

341 

81 

444 

150 

390 

454 
431 

108 

345 

414 

488 

19 

26 

478 

17 

389 

445 

116 

466 
489 
315 

78 

178 
222 

13 

22 

41 

112 

211 
55 

NAMES  OF  OASES.  LXVII 

NAMES  OP  PARTIES.  REPORTER.  PAGE  OP  DIOEOT. 

Sullivan  v.Lowe, 64  N.  C.  R.  500 69 

Summers  v.  McKay, 64  N.  C.  R.  555 441 

Summey,  Swepson  v 64  N.  C.  R.  293 100 

Summey,  Alexander  v 66  N.  C.  R.  577 323 

Sumner  v.  Miller, 64  N.  C.  R.  688 296    336    457 

Sumner  v.  Shipman, 65  K  C.  R.  623 367    454 

Surles  v.  Pipkin, 69  N.  C.  R.  513 8 

Sumner  v.  Young, 65  N.  C.  R.  579 364    367 

Sutton,  Simpson  v Phil.  L.  R.  112 184 

Sutton  v.  Owen, 65  N.  C.  R.  123 60    220 

Sutton  v.  Askew, 66  N.  C.  R.  172 491 

Swain  v.  Smith, 65  N.  C.  R.  211 417 

Swann,  State  v 65  N.  C.  R.  330 34 

Swepson  v.  Harvey 63  N.  C.  R.  106 160     385 

Swepson  v.  Summey, 64  N.  C.  R.  293 100 

Swepson  v.  Rouse, 65  N.  C.  R.    34 45    381     477 

Swepson  v.  Harvey, 66  N.  O.  R.  436 3C8 

Swepson  v.  Harvey, 69  N.  C.  R.  387 369 

Swicegood,  Brinkley  v 65  N.  C.  R.  626 102    457 

Swindle  v.  Credle, 63  N.  C.  R.  305 5 

Symons,  Hutchinson  v 67  N.  C.  R.  156 183 

Ta-cha-na-tate,  State  v 64  N.  C.  R.  614 237 

Tapaeott,  Ireland  v 68  N.  C.  R.  300 356    453 

Tapscott,  State  v 68  N.  C.  R.  300 356 

Tate,  Exparte, 63  N.  C.  R.  308 85 

Tatev.  Powe, 64  N.  C  R.  644 296    331 

Tate  v.  Morehead, 65  N.  C.  R.  681   39 

Tate,   Howerton  v 66  N.  C.  R.  231 332 

Tate,   Howerton  v 66  N.  O.  R.  431 405 

Tate,   Howerton  v 68  N.  C.  R.  546 349 

Tate,   Howerton  v 70  N.  C.  R.  161 

Tate,  Mott  v 66  N.  C.  R.  214 333 

Tatev.  Smith, 70  N.  C.  R.  685 273 

Tatom,  Statev 69  N.  C.  R.    35 454 

Tayloe  v.  Johnson, 63  N.  C.  R.  381 316 

Taylor,  State  v Phil.  L.  R.  508 166     167     246 

Taylor,  Alexander  v Phil.  Eq.  R.    36 40 

Taylor  v.  Miller,  Phil.  Eq.  R.  365 459 

Taylor,  Cobb  v 64  N.  C.  R.  193 ™ 

Taylor  v.  Galbraith, 65  K  C.  R.  409 82 

Taylor  v.  Rhyne, 65  N.  C.  R.  530 232 

Taylor  v.  Adams, 66  N.  C.  R.  338 357 

Taylor,  Webber  v 66  N.  C.  R.  412 403 

Taylor,   Whitridge  v 66  N.  C.  R.  273 46 

Taylor  v.  Allen, 67  N.  C.  R.  346 465 


LXVIII  NAMES  OF  CASES. 

NAMES  OF  PASTIES.  REPORTER.  PAGE  OP  DIGEST. 

Taylor,  State  v 69  N.  C.  R.  543 207 

Taylor  v.  Dudley, 70  N.  C.  R.  146 156 

Teague  v.  James, 63  N.  C.  R.    91 385 

Teague  v.  Perry, 64  N.  C.  R.    39 219 

Teague,  Ogburn  v 67  N.  C.  R.  355 .  390    443 

Teague  v.  Downs, 69  N.  C.  R.  280 i  241 

Terrell  v.  Walker, 65  N.  C.  R.    91 468 

Terrell  v.  Walker,    66  N.  C.  R.  244 79    445 

Terrellv.  Terrell 69  K  C.  R.    56 123 

Terry,  McKeithan  v 64  N.  C.  R.    25  , 232 

Thigpen  v.  Price, Phil.  Eq.  R.  146 459    474 

Thomas,  Hoover  v Phil.  L.  R.  184 143 

Thomas,  March  v 63  N.  C.  R.    87 446 

Thomas,  March  v 63  N.  C.  R.  249 65 

Thomas  v.  Norris, 64  N.  C.  R.  780 330 

Thomas,  State  v 64  N.  C.  R.    74 144     170 

Thomas  v.  Womack, 64  N.  C.  R.  657 12 

Thomas  v.  Com'rs  of  Carteret, . .   66  N.  C.  R.  522 333 

Thomasson,  Ballard  v 65  N.  C.  R.  436 425 

Thompson,  Matthews  v Phil.  L.  R.    15 146 

Thompson  v.  McNair,   Phil.  Eq.  R.  121 262 

Thompson  v .  Berry, 64  N.  C.  R.    79 281 

Thompson  v.  Berry, 64  N.  C.  R.    81 %82 

Thompson  v.  McNair, 64  N.  C.  R.  448 265 

Thompson,  Rowland  v 64  N.  O.  R.  714 18    296 

Thompson,  Battle  v 65  N.  C.  R.  406 445 

Thompson  v.  Berry, 65  N.  O.  R.  484 453 

Thompson,  Rowland  v 65  N.  C.  R.  110 297 

Thompson  v.  Badham, 70  N.  C.  R.  141 187 

Thompson,  Moore  v 69  N.  C.  R.  120 379 

Thompson,  Nutt  v 69  N.  C.  R.  548 421 

Thompson  v.  Rogers, 69  N.  O.  R.  357 354 

Thorburn,  Hall  v Phil.  L.  R.  158 12 

Thome,  State  v 66  JSf.  C.  R.  664 249 

Thornton  v.  Thornton 63  N.  C.  R.  211 119    459 

Thorp,  Norwood  v 64  N.  C.  R.  682 71 

Tiddy,  Exchange  Bank  of  Co- 
lumbia,   67N.C.  R.  469 343 

Tiddy,   Exchange  Bank  of  Co- 
lumbia,   67  N.  C.  R.  169 50 

Tilly,  Laxton  v 66  N.  C.  R.  327 122 

Tisdale,  State  v Phil.  L.  R.  220 253 

Todd,  Stephenson  v 63  N.  C.  R.  368 37 

Tadd  v.  Trott, 64  N.  C.  R    280 318 

Toms  v.  Warson, 66  N.  C.  R.  417 38 


NAMES  OF  OASES.  LXIX 

NAMBS  OF  PARTIES.  REPORTER.  PAGE  OP  DIGEST. 

Towev.  Towe, 67  N.  C.  E.  298 375    397 

Town  of  Edenton  v.  Wool, 65  N.  C.  E.  379 469 

Trammel  v.  Ford Phil.  Eq.  E.  339 

Trexler,  State  v 70  N.  C.  E.  235 399 

Trezevant,  Phillips  v 67  N.  C.  E.  370 354 

Trezevant,  Phillips  v 70  N.  C.  E.  176 114 

Triplett  v.  Witherspoon, 70  N.  C.  E.  589 218 

Trott,  Todd  v 64  N.  C.  E.  280 318 

Trotter,  Garrett  v 65  N.  C.  E.  430 365 

Tucker,  Brooks  v Phil.  L.  E.  309 134 

Tull  v.  Pope 69  N.  O.  E.  183 344 

Tapper,  Perry  v 70  N.  C.  E.  538 210 

Turley  v.  Nowell Phil.  Eq.  E.  301 76      98 

Turner  v.  N.  C.  E.  E.  Co 63  N.  C.  E.  522 406 

Turner,  Eedman  v 65  N.  C.  E.  445 199 

Turner,  Lowe  v 66  N.  C.  E.  413  307 

Turner,  Statev 66  N.  C.  B.  618 

Turner.Statev 65  N.  C.  E.  592 312 

Turner,  Goldsborough  v 67  N.  C.  E.  403 6    391    486 

Turner,  Brown  v 70  N.  C.  E.     93 349 

Turner  v.  Eichmond  &  Danville 

E.E.Co., 70N.CE.      1 412 

Turpin  v.  Herren, 66  N.  C.  E.  519 402 

Tattle  v.  Puitt, 68  N.  C.  E.  543 130    318 

Tweed,  Dillenger  v 66  N.  O.  E.  206 

Twitty  v.  Camp, Phil.  Eq.  E.    61 128 

Underwood,  State  v . .  63  N.  C.  E.     98 147 

Underwood,  State  v 64  N.  C,  E.  599 351 

University,  Oliveira  v Phil.  Eq.  E.    69 301     359 

University  E.  E.  Co.  v.  Holden,  63  N.  C.  E.  410 85 

University,  State  ofN.C.v....  65  N.  C.  E.  714 304 

Utley  v.  Young, 68  N.  C.  E.  387 80    289 

Utleyv.  Foy 70  N.  C.  E.     25 60    372 

Uzzle  v.  Com'rs  of  Franklin 70  N.  C.  E.  564 334 

Valentine  v.  Holloman, 63  N.  C.  E.  475 45      54    386 

Van  Amringe,  Blossom  v Phil.  Eq.  E  133 27    213    2G2 

Van  Amringe,  Blossom  v 63  N.  C.  E.     65 27 

Vann,  Statev 65  N.  C.  E.  532 34 

Vannoy,  Franklin  v 66  N.  C.  E.  145 16 

Vaugh  v.  Eal.  &  Gas.  E.  E.  Co.,  63  N.  C.  B,    11 158 

Vaughn  v.  Deloatch,  65  N.  C.  E.  378 191 

Vaughn  v.  Stephenson, 69  N.  C.  E.  212 297 

Vernon,Grielv 65  N.  C.  E.    76 286 

Vernoy,  Etheridge  v 70  N.  C.  E.  713 5 

Vestv.  Cooper, 68  N.  C.  E.  131 420 


LXX  NAMES  OF  OASES. 

NAMES  OF  PARTIES.  REPORTER.  PAGE  OF  DIGEST. 

Vincent,  Shaw  v 64  K  C.  R.  690 101 

Vinson,  State  v 63  N.  C.  R.  335 169 

Wacaser,   Rhyne  v 63  N.  C.  ft.    36 362 

Wacaser,    Chapman  v 64  N.  C.  R.  532 60 

Waddell  v.  Wood, 64  N.  C.  R.  624 284 

Wade,  Humphrey  v 70  N.  C.  R.  280 304 

Wade  v.  Sanders,    70JN.  C.  R.  270 146     218    450 

Wade  v.  Sanders,    70  N.  C.  R.  277 137 

Wadsworth  v.  Davis, 63  N.  C.  R.  251 385 

Wagoner,  Jones  v 70  N.  C.  R.  322 235 

Wagoner,  Clarke  v 70  N.  C.  R.  706 63     137 

Waldrop  v.  Green, 63  N.  C.  R.  344 263 

Waldrop,  State  v 63  N.  C.  R.  507 52 

Walker  v.  Walker, Phil.  L.  R.  545 147 

Walker,  Bryan  v 64  N.  C.  R.  141 408 

Walker  v.  Terrell, 65  N.  C.  R.    91 468 

Walker  v.  Moody, 65  N.  C.  R.  599 438    448 

Walker,  McKeithan  v 66  N.  C.  R.    9a 183 

Walker,  State  v 65  N.  C.  R.  461 456 

Walker  v  Terrel,l 66  N.  C.  R.  244 79    445 

Walker  v.  Sharpe, 68  N.  C.  R.  363 480 

Walker  v.  Fleming, 70  N.  C.  R.  483 413 

Walker  v.  Johnston, 70  N.  C.  R.  576 319 

Walkup  v.  Houston, 65  N.  C.  R.  501 355 

Wall,  Covington  v 65  N.  C.  R.  594 174    223 

Wall  v.  Fairly, 66  N.  C.  R.  385 139 

Wall  v.  Fairly, 70  N.  C.  R.  537 14 

Wallace,  Kerns  v 64  N.  C.  R.  187 77     191 

Wallace,  McCombs  v 66  N.  C.  R.  481 308 

Waller  v.  Forsythe, Phil.  Eq.  R.  353 315 

Walsh  v.  Hall, 66  N.  C.  R.  233 216     371 

Walston  v.  Bryan, 64  N.  C.  R.  764 177     388 

Walton  v.  McKesson, 64  N.  C.  R.  154 70    444 

Walton  v.  McKesson, 64  N.  C.  R.    77 280 

Walton,  Scott  v 67  1ST.  C.  R.  109 449 

Walton  v.  Sugg, Phil.  L.  R.     98 41     112     211 

Walton  v.  Jordan 65  N.  C.  R.  170 178 

Want,  Hall  v Phil.  L.  R.  502 127 

Ward  v.  Brandt, Phil.  Eq.  R.    71 474 

Ward  v.  Hassell, 66  N.  C.  R.  389 68 

Ward,  Jarman  v 67  N.  C.  R.     33 66 

Ward  v.  Dortch, 69  N.  C.  R.  277 481 

Warren  v.  Brown, 64  N.  C.  R.  381 54 

Warren,  Bland  v 65  N,  C.  R.  372 161 

Warren  v.  Woodward 70  N.  C.  R.  382 326 


NAMES  OF  CASES. 


LXXI 


NAMES  OF  PARTIES.  REPORTER. 

Wasson,  Toms  v 66  N.  C.   3.  417  . 

Washington  B.  Co.,  Carrow  v.  Phil.   L.  R.  118.. 

Wasson,  Wittouski  v 69  N.  C.  R.     38. . 

Watson,  Harrell  v 63  N.  C.  R.  454  . 

Watson  v.  Shields, 67  N.  C.  R.  235 . . 

Watson  v.  Dodd 68  N.  C.  R.  528. . 

Watts  v.  Leggett, 66  N.  0.  R.  197 . . 

Waugh  v.  Blevins,. 68  N.  C.  R.  167. . 

Weaver  v.  Parker, Phil.  L.  R.  479  . 

Webb,  Winston  v Phil.  Eq.  R.      1   . 

Webb  v.  Boyle, 63  N.  C.  R.  271 . . 

Webb,  Smith  v 64  N.  C.  R.  541 . . 

Webb  v.  Com'rs  of  Beaufort,. . .  70  N.  C.  R.  307 . . 

Weber  v.  Taylor, 66  N.  C.  R.  412 . . 

Weeks,  King  v 70  N.  C.  R.  372. . 

Weith,  Powell  v 66  N.  C.  R.  423 . . 

Weith,  Winslow, 66  N.  C.  R.  432  . 

Weith,  Powell  v 68  N.  C.  R.  342 . 

Weith  v.  Wilmington, 68  N.  C.  R.    24 . . 

Wells  v.  Sluder, 68  N.  C.  R.  156  . 

Wells  v.  Sluder, 70  N.  C.  R.    55  . . 

Wesson  v.  Johnson, 66  N.  C.  R.  186. . 

Westv.  Hall, 64  N.  C.  R.    43. . 

West  v.  Shaw, 67  N.  C.  R.  483  . 

Westbrooks,  Fontaine  v 65  K  C.  R.  528  . 

Westscott  v.  Hewlett, 67  N.  C.  R.  191   . 

Western  N.  C.  R.  R.  Co.,   Alli- 
son y 64  N.  C.  R.  382., 

Western    N.    C.    R.    R.    Co.,  v 

Avery, 64  N.  C.  R.  491 . , 

Western  N.  C.  R.  R.  Co.,  Erwin 
v 65  N.  C.  R.    79. 

Western  N.  C.  R.  R.  Co.,  Plott  v  65  N.  C.  R.    74 

Western  N.  C.  R.  R.  Co.,  Leach  v  65  N.  C.  R.  486 
C  R.  R.  Co.,  Mcln- 

67  N.  C.  R.  278 

R.  R.  Co.,  Carter 
68  N.  C.  R.  346 

Western  R.  R.  Co.,  Wilmington  v  66  N.  C.  R.    90 

Whedbee  v.  Shannonhouse, Phil.  Eq.  R.  283 

Wheeler,  Hughes  v  65  N.  C.  R.  418 . 

Whitaker  v.  Bond,  Phil.  Eq.  R.  227 

Whitaker,    Singletary  v Phil.  Eq.  R.    77 

Whitaker  v.  Bond, 63  N.  C.  R.  290 

Whitaker,  State  v 66  N.  C.  R.  630 


Western  N 
tire  v 

Western  N.  C 
v 


57     142 


194 
19 


263 


PA0E  OF  DIGEST. 
38 

457 
110 
439 
288 
178 
233 
486 
160 
322 
489 
107 
334 
403 
481 
289 
300 
289 
470 
18 
228 
377 
60 
62 
279 
(See  errata.) 


287 


57  160 


89 


327 

281 


99  218 


410 

103 
411 
372 

412 

373 
175 
141 
362 
328 
437 
263 
469 


LXXII  NAMES  OF  OASES. 

NAMES  OP  PARTIES.  REPORTER. 

Whitaker  v.  Forbes, 68  N.  C.  R  228. . . . . 

White  v.  Hunt, .■ . . .  64  N.  C.  R.  496 

White  v.  Robinson, 64  N.  C.  R.  698 

White,  Dewey  v 65  K  C.  R.  225 

White,  Hudgins  v 65  N.  C.  R.  393 

White,  CoUghlan  v 66  N.  C.  R.  102 

White,  Morrison  v 67  N.  C.  R.  253 

White,  McDowell  v 68  N.  C.  R.    65 

White,  State  v 68  N.  C.  R.  158 

White,  Winborne  v 69  N.  C.  R.  253 

Whitehead  v.  Whitehead, 64  N.  C.  R.  538 

Whitehead,   Hirsh  v 65  N.  C.  R.  516 

Whitehead,  Morris  v 65  N.  C.  R.  637 

Whitehead,  Atkinson  v 66  N.  C.  R.  293  

Whitehurst,  Carney  v 64  N.  C.  R.  265 

Whitehead,  Pope  v 68  N.  C.  R.  191 

Whitehurst,  Hinton  v 68  N.  C.  R.  316 

Whitehurst  v.  Gaskill, 69  N.  C.  R.  449 

Whitehurst  v.  Green,    69  N.  C  R.  131 

Whitehurst  v.  Latham, 69  N.  C.  R.    33 

Whitehurst,  State  v 70  N.  C.  R.    85 

Whitesides  v.  Green, 64  N.  C.  R.  307 

Whitesides  v.  Williams, 66  N.  C.  R.  141 

Whitfield,  Isler  v Phil.  L.  R.  493 

Whitfield  v.  Bodenhammer, ....  Phil.  L.  R.  362  

Whitfield,    State  v 70  N.  C.  R.  356 

Whitford  v.  Foy, 65  N.  C.  R.  265 

Whitridge  v.  Taylor, 66  N.  C.  R.  273 

Whitsell  v.  Mebane 64  N.  C.  R.  345 

Whitted  v.  Nash, 66  N.  C.  R.  590 

Whittemore,  Hoyle  v 67  N.  C.  R.  252 

Wilbourne,  Martin  v 66  N.  C.  R.  321 

Wilcox,  Pollock  v 68  N.  C.  R.    46 

Wilcoxon  v.  Calloway, 67  N.  C.  R.  4G3 , 

Wilder  v.  Lee, 64  N.  C.  R.    50 

Wiley  v.  Wiley, Phil.  L.  R.  131 

Wiley  v.  Worth, Phil.  L.  R.  171 

Wiley  v.  Wiley, 63  N.  C  R.  182 

Wiley,  Burbank  v 66  N.  C.  R.     58 

Wilhelm,  Parish  v 63  N.  C.|R.     50 

Wilkes,  Burton  v 66  N.  C.  R.  604 

Wilkie,  Scott  v 65  N.  C.  R.  376 

Wilkins  v.  Fineh, Phil.  Eq.  R.  355 

Wilkins,  Lewis  v Phil.  Eq.  R.  303. '. . . . 

Willard,  Blackwell  v 65  N.  C.  R.  555 


PAGE  OP  DIGEST. 

364 

36 

221 

451 

286 

180 

140   241 

423 

132 

172 

306 

227 

240 

66 

266 

94 

291 

224 

490 

130 

467 

201 

205 

465 

268 

91 

387 

252 

148 

388 

22 

439 

127 

472 

165 

222 

46 

121 

199 

389 

130 

479 

157 

486 

265 

189 

348 

190 

378 

403 

375 

473 

61  371 

396 

45 

196 

98 

425 

110 

NAMES  OF  OASES. 


LXXIII 


NAMES  OF  PARTIES. 

Willard  v.  Satcliwell, 

Willey  v.  Gatling, 

Williams,  Burbank  v 

Williams  v.  Moore, 

Y/illiarns,  Atkinson  v 

Williams,  March  v 

Williams,  Calvert  v 

Williams  v.  Bock  well, 

Williams  v.  Council, 

Williams  v.  Dixon, 

Williams,  Hardie  v 

Williams  v.   Smith 

Williams,  State  v 

Williams,  Biggs  v 

Williams,  State  v 

Williams,  Mason  v 

Williams,  Whiteside  v 

Williams  v.  Monroe,    

Williams  v.  Monroe,   

Williams,  State  v 

Williams,  State  v 

Williams  v.  Green, 

Williams  v.  Williams, 

Williams  v.  Alexander, 

Williams  v.  Sharpe, 

Williams,  Clarke  v 

Williamston  &  T.  R.  R.  Co., 
Battle  v. 

Willis,  State  v 

Willis,  Council  v 

Willougkby,  Robinson  v 

Willoughby,  Robinson  v 

Willougkby,  Robinson  v 

Wilmington  City  v.  Davis, 

Wilmington  &  Weldon  R.  R. 
Co. ,  Nash  v 

Wilmington,  Charlotte  &  Ruth- 
erford R.  R.  Co.  v.  Western 
R.  R.Co., 

Wilmington  &  Weldon  R.  R. 
Co.,  Reid  v 

Wilmington  &  Weldon  R.  R. 
Co.,  King  v 

Wilmington  &  Weldon  R.  R. 
Co.,  Battle  v  


REPORTER. 

PAGE  OF  DIGEST. 

70  N.  C.  R.  268 . 

454 

70  N.  C.  R.  410. 

400 

Phil.  L.  R.  37. 

82 

Phil.  Eq.R.  211. 

353 

63  N.  C.  R.  592. 

429 

63  N.  C.R.  371. 

37   348 

386 

61  N.  C.  R.  16S. 

219 

64  N.  C.  R.  325 . 

285 

65  N.  C.  R.  10. 

401 

65  N.  C.  R.  416., 

473 

65  N.  C.  R.  56. 

191 

05  N.  C.  R.  87 

482 

65  N.  C.  R.  398 . 

33 

66  N.  C.  R.  427., 

13  272 

360 

65  N.  C.  R.  505. 

389 

06  N.  C.  R.  564. 

>  •  •  •  * 

144 

66  N.  C.  R.  141 

22 

433 

67  N.  R.  C.  133. 

58 

443 

67  N.  C.  R.  164 

479 

67  K  C.R.  12. 

165 

68  N.  C.R.  00. 

172 

68  N.  C.  R.  183. 

242 

70  N.  C.  R.  189. 

327 

70  N.  C.  R.665. 

290 

70  N.  C.  R.  582. 

14 

70  N.  C.  R.  679., 

14 

462 

66  N.  C.  R.  540.. 

267 

325 

63  N.  C.R.  26. 

•  •  m   •  •   * 

236 

66  N.  C.  R.  359. 

287 

65  N.  C.  R.  520. 

339 

67  N.  C.R.  84. 

13 

70  N.  C.  R.  358 . 

311 

63  N.  C.  R.  582 . 

455 

67  N.  C.  R.  413 , 

63 

66  N.  C.  R.  90 

175 

64  N.  C.  R.  266  , 

87 

66  N.  C  R.  277., 

80 

89 

66  N.  C.  R.  843. 

111 

10 


LXXIV  NAMES  OF  OASES. 

NAMES  OF  PAKTIES.  REPORTER.  PAGE  OP  DIGEST. 

Wilmington   &   Weldon    R.    E. 

Co.,  Powell  v 68  N.  C.  R.  395 397 

Wilmington   &    Weldon   R.    R. 

Co.,  Murphy  v 70  N.  C.  R.  437 4 

Wilson,  State  v Phil.  L.  R.  237 32    254 

Wilson  v.  Franklin, 63  N.  C.  R.  259 405 

Wilson  v.  Barnhill,   64  K  C.  R.  121 30 

Wilson  v.  Holly, 66  N.  C.  R.  408 107     154    394 

Wilson,  Simmons  v 66  N.  C.  R.  336 464 

Wilson.Statev 67  N.  C.  R.  456 250 

Wilson  v.  Peterson, 69  N.  C.  R.  113 447 

Wilson  v.  Derr, 69  N.  C.  R.  137 158    162 

Wilson  v.  Abrams, 70  N.  C.  R.  324 298    422 

Wilson  v.  Arents 70  N.  C.  R.  670 239 

Wilson,  Jarrett  v 70  N.  C.  R.  401 118 

Wilson,  Jarrett  v 70  N.  C.  R.  403 118 

Winants,  King  v 68  N.  C.  R.    63 364 

Winborne  v.  White 69  &  C.  R.  253 227 

Windley,  Blount  v 68  N.  C.  R.      1 50    468 

Winslow  v.  Fenner, Phil.  L.  R.  565 35 

Winslow,  Johnson  v 63  N.  C.  R.  552 86     326 

Winslow  v.    Com'rs  of  Perqui- 
mans,    64  N.  C.  R.  218 342 

Winslow,  Johnson  v 64  N.  C.  R.     27 (see  errata.) 

Winslow  v.  Weith 66  N.  C.  R.  432 300 

Winslow  v.  Wood, 70  N.  C.  R.  430 58 

Winstead  v.  Bowman, 68  N.  C.  R    170 495 

Winstead  v.  Stanfleld, 68  N.  C.  R.     40 225 

Winston  v.  Webb, Phil.  Eq.  R.      1 322 

Winston  v.  Dalby 64  N.  C.  R.  299 117 

Wise,  State  v 66  N.  C.  R.  120 248 

Wise,  State  v 67  N.  C.  R.  281 258 

Wiseman,  State  v 63  N.  C.  R.  536 10 

Wiseman,  State  v 68  N.  C.  R.  203 24    259 

Witherington  v.  Phillips, 70  N.  C,  R.  444 357 

Withers  v.  Sparrow, 66  N.  C.  R.  129 240 

Witherspoon,  Triplett  v 70  N.  C.  R.  589 218 

Wittkowski,  Alexander  v 64  N.  C.  R.  634 442 

Wittkowski,  Beckham  v 64  N.  C.  R.  464 144    189 

Wittkowski  v.  Wasson, 69  N.  C.  R.     38 110 

Womack  v.  Eacher, Phil.  Eq.  R.  161 213 

Womack,  Thomas  v 64  N.  C.  R.  657 12 

Womble  v.  George, 64  N.  C.  R.  759 198 

Wood  v.  Sawyer, Phil.  L.  R.  251 19     173    493 

Wood  v.  Wood, Phil.  L.  R.  538 92    133    270 


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